The case is Incantalupo v. Lawrence Union Free School District, a summary order decided June 7. Even the most innovative cases can fail under Rule 12 if the court says you cannot state a claim. Here, plaintiffs argue that the school district adopted a consolidation plan involving the closure of an elementary school but that the plan was adopted by the Orthodox Jews on the school board to minimize taxes and financially starve the school system and therefore promote Orthodox Judaism by making more money available to Orthodox families to afford private school tuition.
That's a hell of a claim, to be sure. But the Court of Appeals (Newman, Straub and Raggi) says the Complaint does not state a plausible claim for relief. True, the Establishment Clause requires the separation of church (or synagogue) and state. But, false, that you can prove this claim here. The government has a secular purpose in setting tax policy, and you cannot prove an Establishment Clause claim by challenging the religious motives of public officials. You can only do so if the policy has a religious purpose.
Religious purpose is relevant, not religious motive. The Supreme Court said this in Board of Education v. Mergins, 496 U.S. 226 (1990), which said, "what is relevant is the legislative purpose of the statute, not possibly religious motives of the legislators." Here is how the Second Circuit sizes things up:
Thus, the religious motivation plaintiffs ascribe to the challenged plan cannot, by itself, state a claim under the Establishment Clause. As long as the plan affords any realized tax savings to taxpayers generally and without regard to religion, plaintiffs cannot plausibly allege that either the purpose or the primary effect of the plan is to establish religion. The fact that a large number of Orthodox Jewish taxpayers may freely choose to spend their tax savings from the plan on religious education for their children warrants no different conclusion because the plan itself does nothing to reward or even encourage such a consumption choice. The plan is neutral as among taxpayers of different or no religious beliefs. Finally, plaintiffs fail plausibly to allege that the plan entangles the government with religion.