Supreme Court: Maine cannot ban religious schools from tuition program

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The Supreme Court on Tuesday struck down a Maine tuition program that does not allow public funds to go to religious schools, the court’s most recent ruling elevating concerns about discrimination against religion to constitutional concerns about separation of Church and State.

The vote was 6 to 3, with Chief Justice John G. Roberts Jr. writing for the majority and the three court liberals dissenting.

The case concerns an unusual program in a small state that only affects a few thousand students. But it could have far greater implications as the most conservative court routinely tones the line between the Constitution’s protection of religious practice and its ban on government endorsement of religion.

Under Maine’s program, jurisdictions in rural areas too sparsely populated to support their own high schools can arrange for neighboring schools to teach their school-aged children, or the state will pay tuition to parents. to send their children to private schools. But those schools must be nonsectarian, meaning they can’t promote any faith or belief system or teach “through the prism of that faith,” in the words of the state education department. .

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Roberts said this approach could not survive the constitutional guarantee of the free exercise of religion.

“There is nothing neutral about the Maine program,” he wrote. “The state pays tuition for some students in private schools – as long as the schools are not religious. This is discrimination against religion.

Judge Sonia Sotomayor, one of the dissenters, replied, “This Court continues to dismantle the wall of separation between Church and State that the Framers fought to build.

Those on opposite sides of the divide agreed only on the significance of the outcome.

“Today’s ruling makes it clear, once and for all, that the government cannot prohibit parents from selecting religious schools for educational choice programs, whether because of their religious affiliation or religious instruction they provide,” said Michael Bindas, senior prosecutor at the Institute for Justice. argued the case in the Supreme Court for two families, said in a statement. “Parents have a constitutional right to choose such schools for their children, and the Court today ruled that a state cannot deny them that choice in programs that allow other private options.”

Americans United for Separation of Church and State President and CEO Rachel Laser said in a statement that “the ultra-conservative majority on the United States Supreme Court continues to redefine the constitutional promise of religious freedom for all as a religious privilege for a privileged few”.

“The court is forcing taxpayers to fund religious education,” Laser said, likening it to a form of “government imposed tithing.”

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The decision was not unexpected, but is the latest in a remarkable string of victories for religious interests at Roberts’ court. Just that term, the court ruled that a death row inmate must have access to a spiritual advisor at the time of execution, and that Boston is not free to deny a Christian group’s request to fly its flag. at City Hall lest it appear to be an endorsement of religion if other groups have the privilege.

He will soon rule on a public high school football coach’s insistence that he be allowed to offer a prayer of gratitude to the midfielder after a game.

Tuesday ruling was the latest example of how the chief justice — joined in his opinion by fellow conservative justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — prefers to move the act gradually in a conservative direction.

In 2017, he authored the opinion that a state could not exclude a church from a Missouri program that supported playground safety measures. The ruling was narrow enough to draw support from liberal justices Stephen G. Breyer and Elena Kagan. In a footnote, he said the ruling only addressed “express discrimination based on religious identity with respect to playground resurfacing,” not “religious uses of funding.”

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In 2020 Robert built on the decision. He then wrote for the majority of the court that a Montana program that offered tax credits to donors who sponsored scholarships for private school tuition should also be open to private religious schools.

“A state does not need to subsidize private education,” he wrote. “But once a state decides to do that, it can’t disqualify certain private schools just because they’re religious.”

Roberts wrote in Tuesday’s ruling, “Maine’s decision to continue to exclude religious schools from its tuition assistance program…promotes a stricter separation of church and state than is currently the case.” requires the Federal Constitution.

He distinguished the Maine case from the court’s landmark 2004 decision in Locke vs Davey that Washington State may restrict state-funded scholarships for those studying to become clergy.

Locke cannot be read beyond its narrow focus on professional religious degrees to generally authorize the state to exclude religious persons from the enjoyment of public benefits based on their anticipated religious use of the benefits,” Roberts wrote Tuesday. .

The three liberals on the tribunal — Breyer, Kagan and Sotomayor — said the tribunal went too far.

Sotomayor noted the trajectory. “What a difference five years make,” she writes, “In 2017, I feared the Court would be”[ing] we…to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. Today, the Court is leading us to a place where the separation of church and state becomes a constitutional violation… With growing concern about where this Court will take us next, I respectfully disagree.

Breyer, in a separate dissent joined by Sotomayor and Kagan, criticized the court majority for not respecting its long-established position that there must be “play in the joints” for governments to attempt to balance the religious protection while avoiding entanglement.

Breyer acknowledged that the court has in the past agreed that states can provide assistance to private religious schools. But the key word is may,” he wrote. “We have never considered before what the Court considers today, namely that a State to have to (not may) use public funds to pay for religious education under a tuition program designed to ensure the provision of free public education throughout the state.

The case involved two families who lived in a rural part of Maine that did not offer public high schools. David and Amy Carson wanted state tuition to continue sending their daughter to Bangor Christian Schools, and Troy and Angela Nelson, who wanted to send their daughter to Temple Academy.

Both schools offer religious instruction. Additionally, Breyer said, they “deny students enrollment based on their sex, gender identity, sexual orientation, and religion, and both schools require their teachers to be born-again Christians.” “.

A panel of the United States Court of Appeals for the 1st Circuit, which included retired Supreme Court Justice David Souter, says Maine is within its rights not to spend public funds on schools with a religious mission. He made a distinction between schools’ denial of funds on the basis of religious affiliation and religious use, the issue flagged in the playground dispute.

Breyer said the majority seemed to think she had found a way out.

“In the opinion of the majority, the fact that individuals, and not Maine itself, choose to spend state money on religious education saves Maine’s program from the condemnation of the distancing clause. ‘establishment,’ he wrote. “But this fact, as I said, simply permit Maine to channel funds to religious schools. It’s not require Maine to spend his money that way.

And he said the court’s decision will force Maine officials to adopt a curriculum that “creates a similar potential for religious strife as that raised by the promotion of religion in public schools.”

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It may seem that the state favors one religion over another, or religion over non-religion, Breyer wrote. Some members of minority religions too small to form their own schools will feel cheated, he said. And those who live in neighborhoods large enough to have secondary schools might object that only those who live in certain rural areas will receive state assistance to send their children to religious schools.

Roberts dismissed most of these concerns. The program works only in places where school districts have not contracted with a public school to provide services. If Maine doesn’t want tuition to go to private schools, it “retains a number of options: it could expand the reach of its public school system, increase transportation availability, offer a combination of tutoring, distance learning and partial attendance, or even run their own boarding schools.

The court’s decision reflects a determined effort by those who favor religious schools.

Notre Dame law professor Nicole Stelle Garnett filed a lawsuit against the Maine program 25 years ago. She called Tuesday’s decision “a victory both for religious freedom and for American schoolchildren.”

The ruling “removes a major barrier to expanding parental choice in the United States by clarifying that when states enact choice programs, they must allow parents to choose denominational schools for their children,” Garnett said in a statement.

The case is Carson v. Makin.


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