Mark and Melinda Loe

Loe v. Walz: Religious Liberty Triumphs in Minnesota

Jason Chahyadi on June 21, 2023

Mark and Melinda Loe are a Christian couple from Minnesota seeking to live out the American dream: work good jobs, raise a family, and give their children a quality education. They were able to do just that, sending their older children to Christian colleges through the help of the state’s Postsecondary Enrollment Options (PSEO) program.

The program allows high school sophomores, juniors, and seniors to enroll in dual-credit courses and earn college credits in high school without paying tuition. This provision lessens the time students need to graduate college, and by extension, their tuition burden. The path to the Loe’s American dream was looking bright as they progressed closer to sending all their children to quality Christian universities.

This all changed when the State of Minnesota amended the PSEO program. In May, Minnesota passed H.F. 2497, which bars all colleges and universities participating in the PSEO program from mandating that enrolled students agree to a statement of faith as a condition for admittance. Under this law, the Loe family would be hindered from sending their children to Crown College and the University of Northwestern-St. Paul, both of which are Christian colleges that mandate agreement to a statement of faith.

The couple recently filed suit against the state in the United States District Court for the District of Minnesota. Judge Nancy Brasel, who was appointed to her post by President Donald Trump, presided over the case. Brasel ruled in favor of the plaintiffs, the Loe family, by issuing an injunction on June 14 that enjoins Governor Tim Walz and Minnesota Commissioner of Education Willie Jett from enforcing the law amending the PSEO program.

“We are glad that Minnesota has agreed not to punish our children and many students like them for wanting to learn at schools that reflect their values … We hope the court will eventually strike this law down for good and protect all religious students and the schools they want to attend,” the Loes commented in response to the win at the district court.

Becket Fund for Religious Freedom Senior Counsel Diana Thomson echoed a similar desire for the court to more forcefully strike down H.F. 2497, stating, “the state didn’t do its homework before it passed this unconstitutional law. The next step is for the court to strike down this ban for good.”

If Minnesota decides to fight this dispute at the appellate level, the courts may push back even harder than Brasel did at the district court. The state faces an uphill climb in justifying their law against the competing interest of religious liberty.

The Supreme Court held in Employment Division v. Smith that generally applicable and facially neutral laws that regulate religious conduct are permissible. However, Minnesota’s amendment to the PSEO is not generally applicable as it does not cover everyone in the state, merely high school, universities, and high school students. Further, the amendment is not facially neutral for it specifically excludes Christian schools with a statement of faith from PSEO eligibility.

More recently, the Court in Fulton v. City of Philadelphia held that the “government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs.” H.F. 2497 falls under this holding as it targets schools when they decide to institute a statement of faith, an action wholly motivated from religious belief and conviction.

When the government advances a law that fails either the general applicability or the facial neutrality requirement, it must justify its law under the standard of strict scrutiny, per the Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. Such a standard requires the government to show that the law in question promotes a state interest “of the highest order” with a means that is the least restrictive method to accomplishing the state’s end.

Minnesota Department of Education Communications Director Kevin Burns contended that “the state believes no students should be discriminated against based on their religion” and argued that H.F. 2497 is intended to “to defend the rights and individual liberties of Minnesota students.” However, by preventing Christian families like the Loes from using the PSEO program to enroll their children in Christian universities, the state encroaches on the religious freedom of its constituents. As the Court held in Sherbert v. Verner, citing Speiser v. Randall, the “conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms.”

Even if the state’s interest is deemed compelling, H.F. 2497 cuts against that very interest by targeting Christian schools and by extension, students in the PSEO program that wish to attend those schools. As such, the state will face significant difficulty in satisfying the required strict scrutiny burden if they choose to appeal their case to the appellate courts.

  1. Comment by p on June 21, 2023 at 4:39 pm

    I’ll be shocked if the state doesn’t appeal. Passing that bill in the first place is part and parcel of the way things are being run there these days.

  2. Comment by Tom on June 21, 2023 at 5:31 pm

    Minnesota Department of Education Communications Director Kevin Burns contended that “the state believes no students should be discriminated against based on their religion” and argued that H.F. 2497 is intended to “to defend the rights and individual liberties of Minnesota students.”

    Somewhere George Orwell is smiling. Burns’s statement is the exact opposite of what he is actually doing–which seems to be the standard MO for a lot of people these days.

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