Supreme Court upholds equal treatment for religious schools

A Supreme Court majority in June rejected an attempt by Maine to bar parents from using state tuition assistance to pay for their children to attend religious schools where no public school is available.

Under Maine’s program, if a student lived in a rural district without its own public school, parents could receive tuition assistance for their child at a nonsectarian, accredited private school in or out of the state. But they could not use the money at a religious school.

In the June 21 6-3 opinion authored by Chief Justice John Roberts, the court ruled that Maine’s attempt to limit the use of funds to nonsectarian schools violated the free exercise clause of the First Amendment.

“There is nothing neutral about Maine’s program,” wrote Roberts. “The state pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.” The ruling came as no surprise, given positions signaled by the justices at December 2021 oral arguments.

Two families sued the Maine Department of Education in 2018 contending that the state’s requirement that they use tuition assistance funds for their children at nonsectarian schools violated their religious liberty. David and Amy Carson, who lived in Glenburn, wanted to send their daughter to high school at Bangor Christian Schools. Troy and Angela Nelson, who lived in Palermo, sent their son to Temple Academy, which was affiliated with Counterpoint Community Church. Both a federal district court and a court of appeals rejected their arguments.

For Roberts, a decision in favor of the parents involved a straightforward application of previous rulings of the court in Trinity Lutheran Church of Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue.

In 2017’s Trinity Lutheran, the court struck down a rule preventing Missouri from sponsoring a church preschool playground remodel using surfaces made from recycled rubber tires. The justices concluded that it would be discriminatory for the state to exclude the church because of its religious character.

And in 2020’s Espinoza, the court applied its reasoning from Trinity Lutheran in striking down as discriminatory 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. The ruling upheld a state program that provided tax credits to donors who sponsored scholarships for private school tuition.

Attorneys for Maine argued, and the 1st U.S. Circuit Court of Appeals agreed, that the court’s rulings in Trinity Lutheran and Espinoza centered on “solely status-based religious discrimination,” while the Maine rule “imposes a use-based restriction,” yet the majority rejected that distinction as a misreading of the cases.

“In Trinity Lutheran and Espinoza, we held that the free exercise clause forbids discrimination on the basis of religious status,” the chief justice wrote. “But those decisions never suggested that use-based discrimination is any less offensive to the free exercise clause.” Roberts went on to note that the attempt to make such a distinction by scrutinizing how the school would use funds “would also raise serious concerns about state entanglement with religion and denominational favoritism.”

Justice Stephen Breyer, joined by liberal Justices Elena Kagan and Sonia Sotomayor, penned an 18-page dissenting opinion. Breyer emphasized the “play in the joints” between the establishment and free exercise clauses of the First Amendment that “sometimes 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.” Avoiding religious strife was at the heart of the two religion clauses, said Breyer, who added that states should have leeway to advance this interest.

While joining much of Breyer’s dissent, Justice Sonia Sotomayor wrote separately to emphasize her disagreement with the court’s path, criticizing both the majority’s opinion and previous rulings in Trinity Lutheran and Espinoza as ones that “revolutionized free exercise doctrine by equating a state’s decision not to fund a religious organization with presumptively unconstitutional discrimination on the basis of religious status.”

The chief justice issued a sharp rebuke to the dissenters. “The dissents are wrong to say that under our decision today Maine ‘must’ fund religious education,” wrote Roberts, noting that other options are available to the state, such as expanding the reach of its public school system. Yet having made the choice to fund private education, the state may not discriminate, Roberts wrote. “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.”

Attorneys for the parents celebrated the ruling. “School choice empowers parents to pick the best school for their child—and today the Supreme Court made clear that the government cannot eliminate religious educational options, regardless of whether the state is motivated by a school’s religious status or by the fact that the school provides religious instruction,” said Institute for Justice managing attorney Arif Panju.