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Conservative SCOTUS Majority Says Maine Taxpayers Must Foot the Bill for Education of Some Students at Religious Schools


U.S. Supreme Court via Supreme Court of the United States

The Supreme Court ruled 6-3 on Tuesday that Maine’s tuition reimbursement program violates the First Amendment because it does not allow families to receive funding to sending their children to religious schools.

The case is Carson v. Makin, and the ruling — which allows some parents to send their children to Christian schools on the state’s dime — is an anticipated successor to recent SCOTUS rulings related to religious schools.

Maine implemented its tuition reimbursement program to adequately serve residents who live in sparsely-populated parts of the state. Given the population density, some school districts are simply not large enough to operate secondary schools. These districts allow families to choose their own private schools or out-of-district public schools, then reimburse the families for tuition payments. There’s a limitation under the state’s plan, however:  families may only receive tuition payments for schools that are “nonsectarian” or non-religious.

The program otherwise provides wide latitude to families, as tuition can be reimbursed for schools inside or outside Maine; it even covers schools in foreign countries. Some qualifying schools are not even required to employ teachers licensed in Maine, and some qualifying schools are single-sex schools. Prior to 1981, parents could also direct the tuition assistance payments to religious schools, but the program has since been limited to secular schools.

Parents David Carson and Amy Carson wanted to send their daughter to Bangor Christian school. Likewise, Troy Nelson and Angela Nelson wanted to send their son to another Christian school, Temple Academy. The families sued, and while their case was pending, the Supreme Court ruled against a similar program in Montana that disallowed tax credits to religious schools. That case resulted in a contentious 5-4 ruling that dissenting Justice Sonia Sotomayor called “perverse.”

The Montana case, Espinoza v. Montana Department of Revenue, was decided in June 2020, just two months prior to Justice Ruth Bader Ginsburg’s death, and Chief Justice John Roberts authored that opinion, too.

In the 18-page majority decision, Roberts likened the Maine case to Espinoza. The Court found that its prohibition against religious schools is discriminatory in a manner not justified by the government’s need to remain neutral on religion.

Roberts explained that strict scrutiny is the correct analysis to apply because the effect of Maine’s provision is “to ‘disqualify some private schools’ from funding ‘solely because they are religious.'” Very few inquiries pass constitutional muster under strict scrutiny.  To survive, the measure under examination — here, the school voucher program — must be narrowly tailored to meet a compelling state interest.

Roberts characterized Maine’s program as a deprivation of a public benefit that is “otherwise generally available” but denied to certain Mainers “because of their religious exercise.” The chief justice wrote at length about the differences between the private and public schools allowed to participate in Maine’s program. The private schools teach different curriculum, admit different students, and employ differently qualified teachers.

In light of the varied schools allowed into the program, the Court found that the exclusion of religious schools amounts to “discrimination against religion.”

Roberts then responded to arguments raised by the dissent that Maine’s interest is in avoiding Establishment Clause violations.

“Justice Breyer stresses the importance of ‘government neutrality’ when it comes to religious matters, but there is nothing neutral about Maine’s program,” Roberts wrote.

Roberts then directly addressed arguments made by Maine and reiterated by Justice Stephen Breyer in dissent: that this case differs from past precedent in that Maine’s prohibition focuses on schools that promote particular faiths, rather than those that are simply owned or operated by religious institutions or those that have general religious identities.

Justice Stephen Breyer penned an 18-page dissent which was joined by Justices Sonia Sotomayor and Elena Kagan. Right from the start, the dissenters called out the majority for getting wrong the interplay between the Free Exercise Clause and the Establishment Clause:

The First Amendment begins by forbidding the government from “mak[ing] [any] law respecting an establishment of religion. It next forbids them to make any law “prohibiting the free exercise thereof.” The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second. The majority also fails to recognize the “play in the joints” between the two Clauses.

Breyer began by giving the justices a primer on the Establishment Clause and wrote that states cannot permissibly adopt programs in public schools which aid or oppose any religion. The two clauses, explained Breyer, were meant to be a compromise by the founders. “They aspired to create a ‘benevolent neutrality’ — one which would ‘permit religious exercise to exist without sponsorship and without interference,'” he wrote. “And in applying these Clauses, we have often said that ‘there is room for play in the joints’ between them,'” Breyer continued.

The elder justice continued by warning that the “potential for religious strife is still with us.” Commenting on religious diversity, Breyer wrote:

We are today a Nation with well over 100 different religious groups, from Free Will Baptist to African Methodist, Buddhist to Humanist. People in our country adhere to a vast array of beliefs, ideals, and philosophies. And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division. The Religion Clauses were written in part to help avoid that disunion.

Breyer even quoted Thomas Jefferson in support of his position, who wrote that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”

Breyer wrote that while states may opt to use public funds to support religious schools, no state should be forced to do so. “What happens once ‘may’ becomes ‘must’?” asked Breyer, who then posed hypotheticals about whether school districts with voucher programs might be forced to fund religious schools as well. Imposing a mandatory rule as opposed to a permissive one ignores the important concept of “play in the joints,” said Breyer.

Maine’s program, which denies funding to schools that promote one religion “falls squarely within the play in the joints” between the Establishment Clause and the Free Exercise Clause, said Breyer. Further, Breyer praised Maine’s program because “because it supports, rather than undermines, the Religion Clauses’ goal of avoiding religious strife.” He explained that “[t]axpayers may be upset at having to finance the propagation of religious beliefs that they do not share and with which they disagree” and that families in districts that have their own public secondary schools “may feel indignant” that families in more rural districts have the choice of a Maine-funded religious education.

Breyer even addressed the particular schools in question: Bangor Christian and Temple Academy. Both have admissions policies that discriminate based on gender, gender-identity, sexual orientation, and religion — practices that Maine legislators sought to exclude from public funding. Breyer argued that there is a particular need for state neutrality toward religion in today’s increasingly diverse “[n]ation of more than 330 million people who ascribe to over 100 different religions.”

Sotomayor, who declined to join the portion of Breyer’s dissent in which the latter quoted Thomas Jefferson and initially discussed the value of a “play in the joints” rule, issued her own eight-page dissent.

In it, Sotomayor criticized the Court for its “rapid transformation of the Religion Clauses” — a change she warned will have dire consequences. She described the Court’s ruling as one that “purport[s] to protect against discrimination of one kind” while simultaneously “requir[ing] Maine to fund what many of its citizens believe to be discrimination of other kinds.”

Echoing her earlier dissenting statements in Espinoza, Sotomayor called Tuesday’s decision “especially perverse” in that it relates to public school. Sotomayor ended her dissent with an uneasy retrospective on recent First Amendment jurisprudence:

What a difference five years makes. 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. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.

[image via Fred Schilling, Collection of the Supreme Court of the United States]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos