The Supreme Court on Tuesday struck down a Maine tuition program that does not allow public funds to go to religious schools, the court’s most recent decision elevating concern about discrimination against religion over constitutional worries about the separation of church and state.
The case involves an unusual program in a small state that affects only a few thousand students. But it could have far greater implications as the more conservative court systematically adjusts the line between the Constitution’s protection of religious exercise and its prohibition of government endorsement of religion.
Under Maine’s program, jurisdictions in rural areas too sparsely populated to support secondary schools of their own can arrange to have nearby schools teach their school-age children, or the state will pay tuition to parents to send their kids to private schools. But those schools must be nonsectarian, meaning they cannot promote a faith or belief system or teach “through the lens of this faith,” in the words of the state’s department of education.
Roberts said that approach could not survive the Constitution’s guarantee of free exercise of religion.
“There is nothing neutral about Maine’s program,” he wrote. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.”
Justice Sonia Sotomayor, one of the dissenters, answered, “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”
Those on opposite sides of the divide agreed only on the outcome’s significance.
“Today’s decision makes clear, once and for all, that the government may not bar parents from selecting religious schools within educational choice programs, whether because of their religious affiliation or the religious instruction they provide,” Institute for Justice Senior Attorney Michael Bindas, who argued the case at the Supreme Court for two families, said in a statement. “Parents have a constitutional right to choose such schools for their children, and the Court today held that a state cannot deny them that choice in programs that allow for other private options.”
Americans United for Separation of Church and State President and CEO Rachel Laser said in a statement that “the ultraconservative majority of the U.S. Supreme Court continues to redefine the constitutional promise of religious freedom for all as religious privilege for a select few.”
“The court is forcing taxpayers to fund religious education,” Laser said, comparing it to a form of “government-enforced tithing.”
The decision was not unexpected, but is the latest in what has been a remarkable string of victories for religious interests in the Roberts court. Just this term, the court has ruled that a death-row inmate must have access to a spiritual adviser at the time of execution, and that Boston is not free to reject a Christian group’s request to fly its flag at city hall for fear it would appear to be an endorsement of religion, if other groups are given the privilege.
It will rule soon on a public high school football coach’s insistence he should be allowed to offer a prayer of gratitude at midfield after a game.
Tuesday’s decision was the latest example of how the chief justice — joined in his opinion by fellow conservative justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — prefers to move the law incrementally in a conservative direction.
In 2017, he wrote the opinion that said a state could not exclude a church from a Missouri program that provided support for safety measures at playgrounds. That decision was narrow enough to draw support from liberal Justices Stephen G. Breyer and Elena Kagan. In a footnote, it said the ruling addressed only “express discrimination based on religious identity with respect to playground resurfacing,” and not “religious uses of funding.”
In 2020, Roberts built upon the decision. He wrote for the court’s majority then that a Montana program that provided tax credits to donors who sponsored scholarships for private school tuition must be open to private religious schools, as well.
“A state need not subsidize private education,” he wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
Roberts wrote in Tuesday’s ruling, “Maine’s decision to continue excluding religious schools from its tuition assistance program … promotes stricter separation of church and state than the Federal Constitution requires.”
He distinguished the Maine case from the court’s landmark 2004 decision in Locke v. Davey that Washington state could restrict publicly funded scholarships for those studying to be clergy.
“Locke cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits,” Roberts wrote Tuesday.
The court’s three liberals — Breyer, Kagan and Sotomayor — said the court had gone too far.
Sotomayor noted the trajectory. “What a difference five years makes,” she wrote, “In 2017, I feared that the Court was ‘lead[ing] us … to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.’ Today, the Court leads us to a place where separation of church and state becomes a constitutional violation … With growing concern for where this Court will lead us next, I respectfully dissent.”
Breyer, in a separate dissent joined by Sotomayor and Kagan, criticized the court’s majority for not respecting its long-established holding that there must be some “play in the joints” for governments trying to balance religious protection with avoiding entanglement.
Breyer acknowledged that the court in the past has agreed states may provide assistance to private religious schools. “But the key word is may,” he wrote. “We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.”
The case involved two families who lived in a rural part of Maine that did not offer public secondary schools. David and Amy Carson wanted the state’s tuition payments to continue sending their daughter to Bangor Christian Schools, and Troy and Angela Nelson, who wanted to send their daughter to Temple Academy.
Both schools offer religious instruction. In addition, Breyer said, they “deny enrollment to students based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians.”
A panel of the U.S. Court of Appeals for the 1st Circuit, which included retired Supreme Court Justice David Souter, said Maine was within its rights not to spend public funds on schools with a religious mission. It made a distinction between denying funds from schools based on religious affiliation and on religious use, the issue flagged in the playground dispute.
Breyer said the majority appeared to think it had found a loophole.
“In the majority’s view, the fact that private individuals, not Maine itself, choose to spend the State’s money on religious education saves Maine’s program from Establishment Clause condemnation,” he wrote. “But that fact, as I have said, simply permits Maine to route funds to religious schools. It does not require Maine to spend its money in that way.”
And he said the court’s decision will force Maine officials to enact a program that “creates a similar potential for religious strife as that raised by promoting religion in public schools.”
It may appear the state favors one religion over another, or religion over nonreligion, Breyer wrote. Some members of minority religions too small to form their own schools will feel cheated, he said. And those who live in districts large enough to have secondary schools might object that only those who lives in certain rural areas will receive state aid to send their children to religious schools.
Roberts dismissed most of those concerns. The program operates only in places where the school districts have not contracted with a public school to provide services. If Maine does not want tuition payments to go to private schools, it “retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own.”
The court’s decision reflects a determined effort by those who favor religious schools.
Notre Dame law professor Nicole Stelle Garnett filed a lawsuit against Maine’s program 25 years ago. She called Tuesday’s decision a “victory both for religious liberty and for American schoolchildren.”
The ruling “clears away a major hurdle to the expansion of parental choice in the U.S. by clarifying that, when states adopt choice programs, they must permit parents to choose faith-based schools for their children,” Garnett said in a statement.
The case is Carson v. Makin.