The Supreme Court voted 6–3 to strike down as unconstitutional a Maine law that excludes families from a student aid program if they choose to send their children to religious schools, in a decision released June 21.
The ruling is a defeat for the Biden administration, which supported Maine’s position.
Under the program, school districts in the largely rural state provide tuition assistance for students who do not have a local public secondary school so they can attend other institutions—even in foreign countries—as long as the funding is not used for religious education. Fewer than half of Maine’s 260 school administrative units operate a public secondary school of their own.
The petitioners in the case are parents David and Amy Carson of Glenburn, Maine, along with Troy and Angela Nelson, of Palermo, Maine. Respondent A. Pender Makin was sued in her official capacity as commissioner of the Maine Department of Education. The petitioners filed suit in 2018, claiming the “nonsectarian” requirement of the tuition assistance program offended the Free Exercise Clause and the Establishment Clause of the First Amendment to the U.S. Constitution, as well as the Equal Protection Clause of the Fourteenth Amendment.
Michael Bindas, a senior attorney with the public interest law firm Institute for Justice, argued the case before the Supreme Court and praised the ruling.
“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,” Bindas 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.”
The parents pointed to the Supreme Court’s decision two years ago in Espinoza v. Montana Department of Revenue, which held that a state may not exclude families and schools from participating in a student-aid program because of a school’s religious status. But the parents argued the high court didn’t resolve the question of whether a state may exclude families and schools based on the religious use to which a student’s aid might be put at a school.
The decision (pdf) in Carson v. Makin, court file 20-1088, an appeal from the U.S. Court of Appeals for the 1st Circuit, was delivered by Chief Justice John Roberts. The other five conservative justices joined the Roberts opinion. Liberal Justices Stephen Breyer and Sonia Sotomayor wrote separate dissenting opinions.
Roberts wrote that “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the 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.” The high court reversed the judgment of the 1st Circuit and remanded the case to that court “for further proceedings consistent with this opinion.”
Roberts noted that in the Espinoza decision the Supreme Court found that a provision of the Montana Constitution that “barred government aid to any school controlled in whole or in part by a church, sect, or denomination,” violated the Free Exercise Clause. The no-aid provision triggered strict scrutiny because it excluded “religious schools from public benefits solely because of the religious character of the schools,” the chief justice wrote, quoting Espinoza.
“‘A State need not subsidize private education,’ we concluded, [b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
Roberts added, 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.”
In his dissent, Breyer wrote that there is some “play in the joints” between the First Amendment’s two Religion Clauses and this “gives States some degree of legislative leeway.”
Sometimes it allows a state to “further antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion. In my view, Maine’s nonsectarian requirement falls squarely within the scope of that constitutional leeway.”
In her dissent, Sotomayor lamented that, in her words, the Supreme Court “continues to dismantle the wall of separation between church and state that the Framers fought to build,” and that “[n]othing in the Constitution requires today’s result.”
“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,” she wrote, quoting her dissent (pdf) in Trinity Lutheran Church of Columbia Inc. v. Comer.
“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.”
Mat Staver, founder and chairman of public interest law firm Liberty Counsel, hailed the ruling as a “great victory for religious freedom and school choice.”
“For 40 years, Maine’s law has unconstitutionally discriminated against parents regarding private schools based on religion. That discrimination ends today. Faith-based schools make an important contribution to their communities and are part of the foundation of America. Parents need more educational choices for their children,” Staver said in a statement.
The Council on American-Islamic Relations (CAIR), also praised the decision.
CAIR National Deputy Director Edward Ahmed Mitchell said in a statement that the court was right to strike down “a law that barred students from receiving tuition assistance for private school simply because their school of choice has a religious character.” In doing so, “the court has preserved the constitutional rights of Christians, Muslims, Jews, and many other students of faith.”
Maine’s woke attorney general, Aaron Frey, a Democrat, was bitter after the ruling, attacking religious schools as bigoted.
“Public education should expose children to a variety of viewpoints, promote tolerance and understanding, and prepare children for life in a diverse society,” he said in a statement.
“The education provided by the schools at issue here is inimical to a public education. They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff.”
Frey expressed horror that “one school teaches children that the husband is to be the leader of the household.”