The Supreme Court ruled 6-3 on Tuesday that Maine’s regulation prohibiting students in a student-aid program from using their funds to attend “sectarian” schools violates the First Amendment’s free exercise clause.
“Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” Chief Justice John Roberts wrote in the June 21 decision in Carson v. Makin.
He added that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”
“Maine’s decision to continue excluding religious schools from its tuition assistance program … thus promotes stricter separation of church and state than the Federal Constitution requires.”
Roberts noted that Maine “pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”
Having chosen to fund private schools through its aid program, Roberts said, Maine cannot disqualify some private schools solely because they are religious.
The case was brought by the Carson family, consisting of parents Amy and David and their daughter Olivia, who reside in Glenburn, Maine. Because Glenburn has no public school system, families with school-age children are eligible for a school-choice program that pays tuition at either public or non-sectarian schools.
About 5,000 Maine students are eligible for this program, which excludes private schools that are “associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith,” which Maine considers “sectarian”.
Bangor Christian Schools, a K-12 institution in the adjacent city of Bangor, is where the Carson parents attended. However, because Bangor Christian Schools requires Bible study, it is not qualified for the town tuition scheme, hence Olivia’s tuition must be paid by the Carsons.
In 2018, the Carsons and two other Maine families who wanted to send their children to “sectarian” schools launched a lawsuit.
Other recent opinions on free exercise and equal protection were referenced in the Carson v. Makin decision.
A state scholarship program that excluded religious institutions was ruled down by the court in Espinoza v. Montana Department of Revenue in June 2020 as a violation of the free exercise clause.
In Trinity Lutheran Church of Columbia, Inc. v. Comer, the court determined in 2017 that a church-owned playground can be eligible for a public benefit program.
On Tuesday, Justices Stephen Breyer, who was joined by Elena Kagan, and Sonia Sotomayor, who also issued a dissenting opinion, disagreeing from the ruling.
Breyer argued that the interpretation of the First Amendment advanced by the majority opinion will work against its “general purpose,” which he said is “to allow for an American society with practitioners of over 100 different religions, and those who do not practice religion at all, to live together without serious risk of religion-based social divisions.”
He also argued that Maine “excludes schools from its tuition program not because of the schools’ religious character but because the schools will use the funds to teach and promote religious ideals.”
“State funding of religious activity risks the very social conflict based upon religion that the Religion Clauses were designed to prevent. And, unlike the circumstances present in Trinity Lutheran and Espinoza, it is religious activity, not religious labels, that lies at the heart of this case,” Breyer maintained.
Ashley McGuire, senior fellow with The Catholic Association, called the majority opinion “another blow to bigoted and arcane anti-Catholic laws. If the pandemic has taught us anything, it’s that parents want and deserve better school choices for their kids. Religious families, and even families that aren’t religious but see the value in faith-based schools, should not be cut out from programs that help parents make the best educational choice for their kids. Maine’s law and others like it especially hurt low-income children who suffer the most in failed schools. Today’s win helps to end anti-religious discrimination and expands sorely-needed school choice for low-income families.”
Kelly Shackelford, president of First Liberty Institute, a law firm focused on religious freedom, commented: “We are thrilled that the Court affirmed once again that religious discrimination will not be tolerated in this country. Parents in Maine, and all over the country, can now choose the best education for their kids without fearing retribution from the government.”
The Second Vatican Council’s 1965 declaration on Christian education, Gravissimum educationis, said that parents “must enjoy true liberty in their choice of schools.”
“Consequently, the public power, which has the obligation to protect and defend the rights of citizens, must see to it, in its concern for distributive justice, that public subsidies are paid out in such a way that parents are truly free to choose according to their conscience the schools they want for their children.”