In Case Over Maine Funding of Religious Schools, Justices Discuss Abortion, LGBT Discrimination, and Critical Race Theory

The Supreme Court of the United States heard oral arguments Wednesday in a case over religious education that not only showcased the justices’ views on religious freedom, but raised discussion on abortion, LGBTQ+ discrimination, and even critical race theory.

The case is stylized as Carson v. Makin, and is a highly-anticipated successor to a similar case decided in June 2020, also involving state funding for religious schools.

Carson tests the legality of a Maine tuition reimbursement program. Maine is so sparsely populated that some school districts are not large enough to operate secondary schools. As a result, some districts simply allow families to choose their own private schools or out-of-district public schools, then reimburse the tuition payments. There’s a limitation, however: families may only receive tuition payments for schools that are “nonsectarian” or non-religious.

Parents David and Amy Carson wish to send their daughter to Bangor Christian school. Troy and Angela Nelson wish to send their son to Temple Academy, also a Christian school. The families sued, and while their case was pending, a similar case was decided by SCOTUS in a contentious 5-4 ruling.

The similar case was Espinoza v. Montana Department of Revenue, decided in June 2020, just two months prior to Justice Ruth Bader Ginsburg‘s death. Espinoza was a whopper of a case that showed SCOTUS to be sharply fractured it is views about what “religious discrimination” really means. Montana allowed tax credits for individuals who donated to private non-religious schools. The Espinoza plaintiff raised an argument similar to that of the Carsons and the Nelsons: that disallowing financial benefit for religious schools amounts to discrimination against all religion.

The five conservative justices agreed, ruling that Montana’s secular-only policy violated the Establishment Clause.

Chief Justice John Roberts, who many have looked to in recent times as a potential ally for the more left-leaning justices, penned the majority decision in Espinoza. In a quote nearly tailor-made for the case before Carson, Roberts wrote, “In the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones,” and explained that any constitutional arguments against funding parochial schools are just wrong.

Justice Neil Gorsuch joined a concurrence written by Justice Clarence Thomas that criticized the Court for having the “unfortunate tendency to prefer certain constitutional rights over others.” Justice Samuel Alito wrote his own concurrence, commenting that the Montana program “helped parents of modest means do what more affluent parents can do: send their children to a school of their choice.”

Three months after the Espinoza ruling, and just one month after RBG’s death, the U.S. Court of Appeals for the First Circuit ruled against the Carsons and the Nelsons. The three-judge panel of the appellate court included Circuit Judges David Barron (a Barack Obama appointee) and Bruce Selya (a Ronald Reagan appointee), as well as retired Supreme Court Justice David Souter (a George H.W. Bush appointee and Sonia Sotomayor’s predecessor), sitting by designation.

The panel ruled against the plaintiffs reasoning that the case was different from Espinoza in that the Maine law “does not bar schools from receiving funding simply based on their religious identity, ” but rather, bases its rules on what the schools actually teach. The panel held that Maine’s prohibition against reimbursing tuition for religious schools “merely reflects Maine’s refusal to subsidize religious exercise.”

Against this backdrop of highly contentious view on religious freedom, the justices heard oral arguments. Unsurprisingly, the individual justices seemed firmly committed to their earlier take on religious discrimination within the context of public education.

Justice Thomas opened the discussion with a favorite topic of his: standing. As if to throw petitioners’ attorney Michael Bindas a softball question, Thomas asked how there could be standing when neither school at issue has pledged to accept petitioners’ children as students.

“The constitutional injury is the denial of the opportunity,” Bindas explained.

Justice Elena Kagan pressed the question a bit more, asking whether there would still be standing if only two schools would even accept the state payments. Bindas, clearly prepared for this line of questioning, responded that any dearth of potential recipient schools is actually the result of Maine’s decades-old discriminatory statute.

Justice Stephen Breyer raised a concern about public funding being used to support schools that discriminate against gay students or faculty, or those that teach male superiority before diverted questioning to a different concern — the potential onslaught of litigation.

“There are 65 religions or more in this country and they believe a lot of different things,” said Breyer. “What’s worrying me is that if the state must give money to the schools, they’re going to get into all kinds of religious disputes.”

Bindas responded firmly, “This program does not fund schools. It funds families.”

Chief Justice Roberts posed a hypothetical, asking whether a state-funded subsidy could be restricted from use for building a chapel.

“Is that discrimination against the religious schools? Is it okay?” he asked.

Bindas again responded that the case at hand provides funding to families, and not directly to schools as Roberts’ hypothetical suggested.

It was Justice Sotomayor, however, who guided the discussion toward the central and predictable dispute — whether restricting public funds from paying parochial school tuition is actually discriminatory.

“What is the discrimination?” Sotomayor asked rhetorically, “I think all parents in Maine are given a chance to send their kids to free public secular schools.”

The justice continued, giving her view of Maine’s tuition program. “These parents are put to the same choice that every other parent in Maine is put to,” the justice said, “They’re getting more than other parents.”  She elaborated, “Most other parents have only one choice: send them to the public school that exists, send them to the contracted school that exists or don’t.”

Justice Kagan joined in with a similar line of analysis.

“This isn’t a state that says it loves choices,” Kagan said, “This is a default program for a very small number of students living in isolated areas where the state has decided it does not have the resources to provide public schools.”

Remarking that the court “does this all the time,” Kagan asked, “why does the state have to subsidize a right?”

The conversation immediately shifted to another right about which there is often debate over public funding: abortion, with Kagan comparing the case to Rust v. Sullivan — a case about abortion counseling.

Justice Breyer again raised his concerns. “The reason we’ve stayed out of [religious education] is that we have too many religions and they’re going to get into too many arguments with each other about everything under the sun,” he said.

Justice Kagan next offered up another reason to side with Maine in this controversy: state sovereignty. The justice reasoned that First Amendment analysis demands that there be “some play in the joints” that gives states some degree of autonomy to promote its own values in cases involving religion.

When Deputy Attorney General Christopher Taub began his argument on behalf of the State of Maine, he immediately picked up on the justices’ abortion comparison. Taub argued:

If the federal government can provide funding to family planning services on the condition that it not be used to discuss abortion, a state should be allowed to condition paying a child’s tuition on the condition that the school not promote religious beliefs.

Justice Thomas pressed Taub on whether the tuition payments at issue are really a benefit. He asked, “If you require [parents to send their children to school], and you don’t have schools available, and you make provisions for them to comply with that compulsory law, then how can you say that going to a particular school is a subsidy?”

Justices Roberts and Alito tag-teamed Taub, arguing that Maine’s secular-only policy could be viewed as discriminatory against any religion that favors education as part of its religious doctrine. As the Court’s questioning turned to the extent of Maine’s prohibition, Taub explained that religion is not the only basis upon which a school might be excluded from the state’s program. As an example, a school that instructed white supremacy would similarly not be eligible.

“Would you say the same thing about a school that teaches critical race theory?” asked Justice Alito. Responding that he is unclear exactly what teaching critical race theory would mean, Taub allowed, “If teaching critical race theory is antithetical to a public education, the legislature would likely address that.”

Justice Brett Kavanaugh returned to an earlier line of questioning, asking whether Maine would support a program that allowed tuition reimbursement for some religions but not others. Taub agreed that such a program would indeed be problematic, but argued, “the absence of religion is not animosity toward religion.”

Deputy Solicitor General General Malcolm Stewart argued on behalf of the Biden administration, supporting Maine’s position as a friend of the court. Stewart reiterated that the goal of Maine’s program is to establish religious neutrality. In response to Stewart’s contention that people send their children to religious schools for an array of reasons, including some that are completely unrelated to religion.

Justice Kavanaugh responded that such a view was “slicing it pretty thin in the real world.”

Justice Sotomayor concluded her questioning by bringing the discussion back to history, saying:

I look at the history in this area and what I see is that at the founding, there weren’t public schools. There were self-taught, but most schools were private. And yes, there is a history of some states (not all) subsidizing some religious schools. Then we have later, a movement toward public schools. But what I don’t see after the creation of public schools is a tradition or history of continued support of religious schools. Am I reading the history right?

After SCOTUS’s ruling in Espinoza, there was little doubt that cases like Carson would test the precedents’ limits. Wednesday’s oral arguments showed little change in the justices’ views toward religious discrimination generally, though it is unclear yet whether the Court will distinguish Maine’s program from Montana’s in any meaningful way. The attorneys and justices made only brief mention of Espinoza, choosing instead to focus on the broader analytical questions of whether tuition reimbursement constitutes public funding or whether a preference for “nonsectarian” amounts to discrimination against religion generally.

“Schools receiving taxpayer funds are appropriately subject to the Maine Human Rights Act (MHRA), which prohibits discrimination against individuals on the basis of several protected classes. The two religious schools that the parents in this case want to send their children to have made it clear that they are not interested in complying with the MHRA and, therefore, these schools have not even applied to the Maine Department of Education to be eligible to participate in Maine’s tuition program,” Maine Attorney General Aaron Frey (D) said in a statement after oral arguments. “Put differently, these schools want to continue to discriminate against individuals based on their status in a protected class and that is inconsistent with the protections afforded to all Mainers under the MHRA.”

“Attorneys from my office argued strongly today that Carson v. Makin is different from other cases the Supreme Court has considered recently; and made a compelling case for the constitutionality of Maine’s system of public education, and for how it benefits all Mainers,” Frey added. “It would be inappropriate if Maine taxpayers were forced to fund schools which exclude and discriminate against other Mainers, as that would erode the foundational principles of a public education that is diverse and accessible to all.”

You can listen to the full oral arguments here.

[Image via ERIN SCHAFF/POOL/AFP via Getty Images]