COUNCIL OF ORGANIZATIONS AND OTHERS FOR EDUCATION ABOUT PAROCHIAID, AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, MICHIGAN PARENTS FOR SCHOOLS, 482FORWARD, MICHIGAN ASSOCIATION OF SCHOOL BOARDS, MICHIGAN ASSOCIATION OF SCHOOL ADMINISTRATORS, MICHIGAN ASSOCIATION OF INTERMEDIATE SCHOOL ADMINISTRATORS, MICHIGAN SCHOOL BUSINESS OFFICIALS, MICHIGAN ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS, MIDDLE CITIES EDUCATION ASSOCIATION, MICHIGAN ELEMENTARY AND MIDDLE SCHOOL PRINCIPALS ASSOCIATION, KALAMAZOO PUBLIC SCHOOLS and KALAMAZOO PUBLIC SCHOOLS BOARD OF EDUCATION, Plaintiffs-Appellants,
STATE OF MICHIGAN, GOVERNOR, DEPARTMENT OF EDUCATION, and SUPERINTENDENT OF PUBLIC INSTRUCTION, Defendants-Appellees.
of Claims: 17-000068-MB
Bridget M. McCormack, Chief Justice, David F. Viviano, Chief
Justice Pro Tem Stephen J. Markman Brian K. Zahra Richard H.
Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices
order of the Court, the application for leave to appeal the
October 16, 2018 judgment of the Court of Appeals is
considered, and it is GRANTED. The parties shall include
among the issues to be briefed whether MCL 388.1752b violates
Const 1963, art 8, § 2.
Funds Public Schools is invited to file a brief amicus
curiae. Other persons or groups interested in the
determination of the issue presented in this case may move
the Court for permission to file briefs amicus curiae.
Markman, J. (concurring).
present case is eventually resolved on its merits, there are
two principal outcomes that might result. MCL 388.1752b will
either be sustained or nullified on the basis of this
Court's assessment of Const 1963, art 8, § 2;
Traverse City Sch Dist v Attorney Gen, 384 Mich. 390
(1971); and whatever other sources of law we determine to be
relevant. Sustaining MCL 388.1752b would perhaps be in
tension with the Establishment Clause, while nullifying MCL
388.1752b would perhaps be in tension with the Free Exercise
Clause. Because the recent decision of the United States
Supreme Court in Trinity Lutheran Church of Columbia, Inc
v Comer, __ U.S. __; 137 S.Ct. 2012 (2017), may well be
highly relevant in avoiding either of these potentially
unsustainable outcomes, I would respectfully urge the parties
to brief and to be prepared to respond to questions
concerning the impact, if any, of Trinity Lutheran.
Indeed, for the following reasons, I do not believe we can
undertake a disciplined assessment of this case absent
consideration of Trinity Lutheran.
Traverse City Sch Dist itself sought specifically to
harmonize Const 1963, art 8, § 2 with the Free Exercise
Clause to avoid "serious constitutional problems"
with the state constitutional provision. Traverse City
Sch Dist, 384 Mich. at 430. In particular, we stated
that a "literal perspective on [the provision's]
mandate of no public funds for non-public schools would . . .
[i]n the case of parochial or other church-related school
children . . . violate the free exercise of religion clause .
. . ." Id. Thus, it would be difficult to
disconnect the analysis of either Traverse City Sch
Dist or Const 1963, art 8, § 2, from the
harmonizing authority itself, the Free Exercise Clause.
it is a rule of state constitutional interpretation that
"wherever possible an interpretation that does not
create constitutional invalidity is preferred to one that
does." Traverse City Sch Dist, 384 Mich. at
406. Consequently, in Traverse City Sch Dist, we
accorded a particular interpretation to Const 1963, art 8,
§ 2 specifically to avoid a conclusion that it violated
the Free Exercise Clause. Where this Court may conceivably be
obligated to render an interpretation of Const 1963, art 8,
§ 2 that is consistent, rather than inconsistent, with
the Free Exercise Clause, it would be problematic for it to
fail to give full consideration to interpreting our state
Constitution in accord with the Free Exercise Clause as it is
Trinity Lutheran held that a state agency's
denial of state funds to a religious school based on a
Missouri constitutional provision similar to Const 1963, art
8, § 2 violated the Free Exercise Clause. Trinity
Lutheran, U.S. at; 137 S.Ct. at 2017. While the Missouri
provision expressly required the denial of state funds based
on the religious classification of a putative recipient,
whereas Const 1963, art 8, § 2 is facially neutral on
the matter, this Court noted in Traverse City Sch
Dist that "with 98 percent of the private school
students being in church-related schools," the
classification set forth in Const 1963, art 8, § 2
"is nearly total" in the"
'impact'" of the classification on religious
schools. Traverse City Sch Dist, 384 Mich. at 434.
As a result, if Const 1963, art 8, § 2 is deemed to be
effectively indistinguishable from the Missouri provision
addressed in Trinity Lutheran, the denial of state
funds in this case may well raise Free Exercise concerns
under Trinity Lutheran.
Const 1963, art 8, § 2 may reasonably be characterized
as upholding the values of the Establishment Clause by
precluding state funds from being used to assist religious
institutions. Yet the Establishment Clause and the Free
Exercise Clause may often "tend to clash with the
other" because each sets forth objectives seemingly in
tension. Walz v Tax Comm of City of New York, 397
U.S. 664, 669 (1970). Thus, to the extent that Const 1963,
art 8, § 2 furthers a valid purpose as to the
Establishment Clause, it may consequently be in some tension
with the Free Exercise Clause. It would therefore be
difficult to assess the validity of Const 1963, art 8, §
2 under the Establishment Clause without also assessing its
validity under the Free Exercise Clause.
Court owes the parties, and the people of this state, a final
decision in this case that fairly considers all inextricably
connected issues. The need to fully and finally resolve the
present dispute has been made especially critical by the fact
that it has now been nearly three years since our Legislature
enacted MCL 388.1752b and since a lower court of this state
issued a preliminary injunction preventing that law from
taking effect. Whether MCL 388.1752b is ultimately sustained,
or nullified, it is long past time that this Court, the
highest of our state, determine decisively which of these
outcomes is warranted, so that the product of our legislative
process is no longer maintained in limbo. With that in mind,
I concur with the grant order.
Clement, J., not participating due to her prior involvement
as chief ...