Supreme Court appears to favor religious families in tuition case

During oral arguments on Wednesday, the conservative Supreme Court justices seemed sympathetic to allowing students at religious schools to apply for government benefits. The case, Carson v. Makin, addresses the constitutionality of a Maine tuition assistance program.

Maine guarantees free public education for school-age children. But some rural counties don’t have enough students to sustain a public school, so the state provides tuition assistance to parents, who can select a nonsectarian, accredited private school in or out of the state for their children. They cannot use the money at a religious school, according to state rules. Two Christian couples, David and Amy Carson and Troy and Angela Nelson, are challenging the rules.

At Wednesday’s hearing, Maine Chief Deputy Attorney General Christopher Taub argued the state was not discriminating against religious families because all families receive the same benefit: a free, secular education.

Last year in Espinoza v. Montana Department of Revenue, the Supreme Court struck down a state constitutional provision barring public funds from going to educational institutions “controlled in whole or in part by any church, sect, or denomination.” In a 5-4 decision, the justices held that the rule unfairly excluded religious schools and children who hope to attend them. While the state could choose not to aid private schools, the court concluded, once it chooses to do so, it cannot discriminate between secular and religious ones.

A federal appeals court concluded Maine’s tuition assistance program was different because it focused on the use of funds for religious purposes, while Montana’s focused on the school’s religious status. But an atttorney for the parents urged the justices to focus instead on discriminatory treatment.

“You can call that discrimination based on religious use,” said Michael Bindas, a lawyer for the parents, in his opening remarks. “You can call it discrimination based on religious status. ... Either way, it is discrimination based on religion, and either way, it is unconstitutional.”

The conservative justices seemed to agree.

Chief Justice John Roberts challenged Taub on his distinction between an approved, church-owned school that does not propagate the faith but believes it is lived out in service to others, and a disapproved school that teaches every subject through the lens of faith. “So it is the beliefs of the two religions that determines whether or not their schools are going to get the funds or not,” Roberts concluded. “And we have said that that is the most basic violation of the First Amendment religion clauses—for the government to draw distinctions between religions based on their doctrine.”

Justice Samuel Alito asked whether the state would approve a school that held beliefs like those of Unitarian Universalism, which does not have a common creed. Such a school, Alito proposed, might declare its religious beliefs to be that no one should be subjected to invidious discrimination, everybody is worthy of respect and should be treated with dignity, and everybody has an obligation to make contributions to the community and engage in charitable work. When Taub noted those values were very close to those of public schools, Alito responded, “Well, unless you can say that you would treat a Unitarian school the same as a Christian school or an Orthodox Jewish school or a Catholic school, then I think you’ve got a problem of discrimination among religious groups.”

Justice Brett Kavanaugh challenged liberal Justice Stephen Breyer’s concern that the government needs to stay out of funding religion to avoid “religious strife.” Kavanaugh suggested that excluding religious parents from the program could fuel further conflict.

Becket Law’s Diane Thomson, who filed a friend-of-the-court brief in support of the two couples, explained how Maine’s restrictions cause disparate results. “Imagine thinking it is fair for privileged students attending elite out-of-state boarding schools to reap the benefits of tuition assistance, but not economically-disadvantaged kids wanting to attend their local religious school down the road,” Thomson said. “Maine has created an absurd divide that treats religious education as second-class and harms the poor, too.”