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Religious schools win SupCo fight for taxpayer dollars after Maine, Montana cases

WASHINGTON (CN) — In a 6-3 ruling on Tuesday, the Supreme Court said Maine violated the U.S. Constitution by stopping taxpayer money from funding religious schools within its tuition assistance program. 

The decision divided the court along ideological lines with Chief Justice John Roberts writing the opinion for the majority. 

“There is nothing neutral about Maine’s program,” the Bush appointee wrote. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.” 

Dissenting, Justice Sonia Sotomayor chastised the majority for continuing a pattern of degrading the separation of church and state. 

“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” the Obama appointee wrote. 

Because parents are required to send their children to school, states are required to provide those institutions. However, rural Maine does not follow this pattern. The area has a lack of high schools which resulted in the state creating a policy reimbursing Maine parents for whatever public or private school they choose to send their children to, with the stipulation that it cannot be a sectarian school with religious affiliation. 

Alleging violations of the free exercise clause of the First Amendment and the equal protection clause of the 14th Amendment, a pair of Maine parents — David and Amy Carson and Troy and Angela Nelson — brought a discrimination case against the state’s Department of Education Commission. A federal judge rejected their claims on the merits and the First Circuit affirmed. 

During oral arguments in December, conservative justices on the court leaned into arguments favoring using taxpayer dollars for religious education despite their liberal colleagues questioning why those funds should support discriminatory education. 

In a similar case, Espinoza v. Montana Department of Revenue, the justices ruled in 2020 that states could not exclude families and schools from student aid programs based solely on the school’s religious status. The distinction between Espinoza and the Maine parents’ case is that the schools the Carsons and Nelsons want to send their children to integrate religion into their curriculum. 

Maine says the state’s anti-discrimination laws prevent it from funding the schools because of their policies. The sectarian schools have religious-based standards for student admissions and faculty hires including policies against homosexuality and required agreements on beliefs related to abortion. One of the schools teaches students that men are the leaders of the household. 

Maine’s attempt to keep taxpayer dollars from funding religious education does not survive the court’s scrutiny because, according to Roberts, it promotes a stricter separation of church and state than the Constitution requires. 

“A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise,” the chief justice wrote. 

Roberts said the court has repeatedly ruled that excluding religious observers from public benefits violates the Constitution citing the example of unemployment benefits. 

“By ‘condition[ing] the availability of benefits’ in that manner, Maine’s tuition assistance program — like the program in Trinity Lutheran — ‘effectively penalizes the free exercise’ of religion,” Roberts wrote, citing a 2017 ruling by the court. 

Sotomayor, however, said the majority ignores decades of precedent that allows governments to have flexibility in navigating the separation of church and state while avoiding religious discrimination. 

“The Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars,” Sotomayor wrote. 

While the majority claims their ruling protects against discrimination, Sotomayor said it just brings about a different kind of discrimination. 

“From a practical perspective, today’s decision directs the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction,” Sotomayor wrote. “In addition, while purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds.” 

In a separate dissent, Justice Stephen Breyer — joined by Sotomayor and Justice Elena Kagan — pointed to policies used at the schools in question, including denying enrollment to students based on gender, gender identity and sexual orientation. 

“Legislators also recognized that these private schools make religiously based enrollment and hiring decisions,” Breyer wrote. “Bangor Christian and Temple Academy, for example, have admissions policies that allow them to deny enrollment to students based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians. Legislators did not want Maine taxpayers to pay for these religiously based practices — practices not universally endorsed by all citizens of the State — for fear that doing so would cause a significant number of Maine citizens discomfort or displeasure.” 

The decision comes as parents across the country are doubling down on efforts to have more influence over their children’s education. 

Michael Bindas, an attorney with the Institute for Justice representing the parents, said the ruling was a win for parents who want to choose the best schools for their children. Bindas disagreed with the dissent’s characterization of the ruling forcing government to fund religion. 

“This case is not at all about government funding religion,” Bindas said in a phone call. “This program provides aid to families who live in a town without a public school. It’s not a program where the government funds schools, it’s a program where the government provides aid to families and it allows parents to decide where to use those funds.”

The American Civil Liberties Union — which filed an amicus brief in the case — said the ruling betrayed the country’s founding principles. 

“For over 20 years, every court that has heard a challenge to Maine’s law that prohibits public funding of religious education has upheld its constitutionality,” Zachary Heiden, chief counsel at the ACLU of Maine, said in a statement. “But this Supreme Court has rendered a decision completely contrary to the founding principle of separation of church and state. The First Amendment hasn’t changed, and Maine’s program hasn’t changed. Today’s decision tells us none of this matters.”

A number of the court’s justices attended religious schools. Justices Neil Gorsuch and Brett Kavanaugh are both Georgetown Prep alums. Amy Coney Barrett attended a religious high school and served on the board of a private Christian school with an anti-homosexual stance. 

Sarah Ann Foster from the Maine attorney general’s office did not respond to requests for comment following the ruling.