Religious liberty at the schoolhouse

Today, in Carson v. Makin, the Supreme Court will take up the question of whether the Constitution permits the State of Maine to discriminate against religious schools because they actually teach religion. The constitutional answer is clearly no. The Free Exercise Clause of the First Amendment protects churches and religious organizations from discriminatory treatment.

Given the rural topography of Maine, over half of its school districts do not have a secondary school. For students who reside in these districts, the state provides tuition assistance at the private school of the parent’s choice. As a result, Maine has paid for students to attend elite prep schools all over New England and even overseas. There’s just one catch. Parents may not choose to send their children to a religious school—at least one that is too religious.

Maine law provides that parents must choose a “nonsectarian” school to be eligible for state tuition assistance. Maine interprets this provision to allow distinctions between religious status and religious use. According to Maine, parents who send their children to a religious-in-name-only school may still be eligible for assistance. They may not, however, choose to send their child to a school that actually teaches or incorporates religion into the school day. Parents who send their children to a school that “promotes” a belief system or presents material “through the lens of this faith,” are ineligible for tuition assistance.

The Supreme Court has twice held that states and localities may not discriminate against churches or religious organizations based on their status as religious organizations. In Trinity Lutheran Church of Columbia v. Comer, the Missouri Department of Natural Resources had a policy that categorically disqualified churches and other religious organizations from receiving grants for recycled playground material. The Supreme Court held that states may not expressly discriminate against otherwise eligible recipients solely because of their religious character. The state could not, in other words, withhold benefits simply because the preschool at issue was religious. At its most basic, the Supreme Court explained, the Free Exercise Clause “protect[s] religious observers against unequal treatment.”

A few years later, in Espinoza v. Montana Department of Revenue, the Supreme Court again held that a state may not punish a religious organization because of its religious character. Montana had enacted a tax credit program for private school tuition but prohibited families from using the scholarships at religious schools. The Supreme Court held this exclusion of religious schools from a public benefit solely because of religious status unconstitutional. As Chief Justice Roberts wrote, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Yet, in the Carson case, the First Circuit Court of Appeals upheld Maine’s discrimination against religious schools. The lower court found that the Supreme Court’s prior cases were irrelevant because they involved discrimination based on the religious character of the schools. It believed Maine’s tuition program to be different because a religious school could theoretically qualify—such a school just couldn’t do religious things, such as teach from a biblical worldview or incorporate faith into its curriculum.

That is nonsense, and it is a subversion of religious liberty.

The Supreme Court should hold that the First Amendment forbids discrimination based on both religious character and religious use or participation. The Framers drafted the Free Exercise Clause to protect not only the right to be religious but also the right to participate in religious activity. As Justice Gorsuch once reasoned, “the right to be religious without the right to do religious things would hardly amount to a right at all.”

Under Maine’s law, it is the faithful who suffer most. But members of the Supreme Court have long observed that a state may not “reserve special hostility for those who take their religion seriously, who think that their religion should affect the whole of their lives, or who make the mistake of being effective in transmitting their views to children.”

The Supreme Court should clarify that the First Amendment’s guarantee encompasses not only the right to be religious in some theoretical sense but also the right to act in accordance with one’s faith. Under the First Amendment, a state may not discriminate against schools because they teach through the lens of faith.

It’s that simple. Religious liberty is an empty concept if religious schools are discriminated against for operating religiously. Let’s hope that logic is clear to the Supreme Court.