Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  June 24, 2019                                                                 Bridget M. McCormack,
                                                                                               Chief Justice

  158751                                                                              David F. Viviano,
                                                                                      Chief Justice Pro Tem

                                                                                    Stephen J. Markman
  COUNCIL OF ORGANIZATIONS AND                                                           Brian K. Zahra
  OTHERS FOR EDUCATION ABOUT                                                       Richard H. Bernstein
  PAROCHIAID, AMERICAN CIVIL                                                       Elizabeth T. Clement
  LIBERTIES UNION OF MICHIGAN,                                                     Megan K. Cavanagh,
                                                                                                    Justices
  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,
  v                                                      SC: 158751
                                                         COA: 343801
                                                         Court of Claims: 17-000068-MB
  STATE OF MICHIGAN, GOVERNOR,
  DEPARTMENT OF EDUCATION, and
  SUPERINTENDENT OF PUBLIC
  INSTRUCTION,
             Defendants-Appellees.
  _______________________________________/

          On 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.

         Public 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).

         If the 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
                                                                                             2

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, ___ US ___; 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.

        First, 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.

       Second, 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 now understood.

        Third, 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, ___ US 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.
                                                                                                               3


       Fourth, 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 US 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.

       This 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 legal counsel
for the Governor.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         June 24, 2019
       a0618
                                                                             Clerk
