Conservatives on the Supreme Court seemed ready Wednesday to extend a line of recent rulings favoring religious interests, and they were critical of a Maine tuition program that does not allow public funds to go to schools that promote religious instruction.
Under the program, jurisdictions in rural areas too sparsely populated to support public 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
The idea, Maine chief deputy attorney general Christopher C. Taub told the justices, is to provide students a “rough equivalent” of a public school education.
Schools that actively promote religion are not permitted, Taub said, because “Maine has determined that, as a matter of public policy, public education should be religiously neutral.”
The two families who brought the case to the Supreme Court, with the help of the libertarian Institute for Justice, are asking for special treatment, Taub said.
They “want an entirely different benefit, instruction designed to instill religious beliefs at taxpayer expense.”
The oral argument went on for nearly two hours and featured an array of hypotheticals. At one point, when liberal Justice Elena Kagan ventured that Maine would be free to forbid participation in the program to a school that taught white supremacy, conservative Justice Samuel A. Alito Jr. jumped in to ask Taub: “Would you say the same thing about a school that teaches critical race theory?” — an academic theory for examining racism in institutions.
But the session ended as most suspected it would, with the three liberal justices expressing support for Maine and the six conservatives skeptical that it protected religious parents from unconstitutional discrimination.
Alito and Chief Justice John G. Roberts Jr. noted that a school run by a religious group could receive funds if its views were in line with traditional public school values, but not one whose more robust religious views are incorporated into the teaching.
“It is the beliefs of the two religions that determines whether or not their schools are going to get the funds or not,” Roberts said. “And we have said that that is the most basic violation of the First Amendment religion clauses, for the government to draw distinctions between religions based on their doctrine.”
Justice Brett M. Kavanaugh speculated about neighbors in rural Maine, one of whom gets the tuition payment to send children to a secular private school, the other denied because they want their children to a religious private school.
“That’s just discrimination on the basis of religion right there at that — at the neighborhood level,” he said.
That was the basic argument of Michael Bindas, who was representing the families in the case, David and Amy Carson, who want the tuition to continue sending their daughter to Bangor Christian Schools, and Troy and Angela Nelson, who would like to send their daughter to Temple Academy.
Bindas criticized a ruling by the U.S. Court of Appeals for the 1st Circuit that said Maine’s program met constitutional muster.
“The First Circuit recognized that Maine cannot discriminate against students or schools because they are religious,” Bindas said, but it held “the state is perfectly free to discriminate against students or schools because they do religious things, such as teach or receive instruction in religion.” (Retired Supreme Court Justice David Souter, who often hears cases at the 1st Circuit, was part of the panel.)
Justices Amy Coney Barrett and Neil M. Gorsuch worried about the state deciding which schools relied too much on religious instruction to qualify for the state program, and whether the state investigated whether secular schools were anti-religion. Before she was a judge, Barrett served on the board of a private Christian academy.
Liberal justices were wary at further dismantling of the wall between church and state.
Justice Stephen G. Breyer said Maine doesn’t want to support schools that do not want gay students or instructors and teaches “the man is the boss of the woman and a bunch of other things like that.”
Justice Sonia Sotomayor noted that Maine parents who live in areas that are large enough to support public schools must send their children there or pay for private education.
The Carsons and the Nelsons, she said, simply face “the same choice that every other parent in Maine is put to: Either get a free public secular education or pay for your religious training. They’re being treated as everybody else is.”
The Justice Department switched its position in the case after President Biden was inaugurated and now supports Maine.
Justice Department lawyer Malcolm Stewart said governments have “far greater latitude” under the Constitution when they are simply declining to fund particular speech or religious exercise, rather than imposing barriers to that exercise.
Maine has a legitimate interest in “declining to fund the religious exercise in which Temple Academy and BCS engage,” Stewart said.
Bindas faced questions that could provide an off-ramp if the court does not want to address the issue.
It is unclear whether either of the schools would accept the state tuition money, because of the other regulations that would come with being part of the state program. Maine said that would mean the Supreme Court could not even provide the relief the families want.
But Bindas said that should not keep the justices from deciding the case. “It’s the denial of the opportunity to even seek out such a school that is the constitutional injury here,” Bindas said.
The case is Carson v. Makin.