Court strikes down Maine’s ban on using public funds at religious schools


front facade of supreme court building with tall chain fence and "area closed" signs in foreground

The Supreme Court remains surrounded by a security barrier as the court nears the end of its term. (Katie Barlow)

The Supreme Court on Tuesday ruled that Maine violated the Constitution when it refused to make public funding available for students to attend schools that provide religious instruction. The opinion by Chief Justice John Roberts was a broad ruling, making clear that when state and local governments choose to subsidize private schools, they must allow families to use taxpayer funds to pay for religious schools.

The court’s three liberal justices dissented from Tuesday’s decision, with Justice Sonia Sotomayor cautioning that her colleagues had “upended constitutional doctrine” and expressing “growing concern for where this Court will lead us next.”

The dispute before the court in Carson v. Makin began as a challenge to the system that Maine uses to provide a free public education to school-aged children. In some of the state’s rural and sparsely populated areas, school districts opt not to run their own secondary schools. Instead, they choose one of two options: sending students to other public or private schools that the district designates, or paying tuition at the public or private school that each student selects. But in the latter case, state law allows government funds to be used only at schools that are nonsectarian – that is, schools that do not provide religious instruction.

Two Maine families went to court, arguing that the exclusion of schools that provide religious instruction violates the Constitution. On Tuesday, the justices agreed. Roberts suggested that the court’s decision was an “unremarkable” application of the justices’ prior decisions in two other recent cases: Trinity Lutheran Church v. Comer, in which the justices ruled that Missouri could not exclude a church from a program to provide grants to non-profits to install playgrounds made from recycled tires, and Espinoza v. Montana Department of Revenue, holding that if states opt to subsidize private education, they cannot exclude private schools from receiving those funds simply because they are religious.

In this case, Roberts explained, Maine pays tuition for some students to attend private schools, as “long as the schools are not religious.” “That,” Roberts stressed, “is discrimination against religion.” It does not matter, Roberts continued, that the Maine program was intended to provide students with the equivalent of a free public education, nor does it matter that the program bars benefits from going to schools that provide religious instruction. “Regardless of how the benefit and restriction are described,” Roberts concluded, the Maine program “operates to identify and exclude otherwise eligible schools on the basis of their religious exercise” – a violation of the First Amendment’s free exercise clause.

Justice Stephen Breyer filed an 18-page dissent that Justice Elena Kagan joined and Sotomayor joined in part. Breyer emphasized that the Supreme Court has not previously ruled that “a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public education.” But Tuesday’s decision, Breyer suggested, creates the prospect that states may now be required to providing funds for religious schools simply by operating public schools or by giving vouchers for use at charter schools.

Sotomayor echoed Breyer’s warnings in her five-page dissent. In a short time, she observed, the Supreme Court has “shift[ed] 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.”

This article was originally published at Howe on the Court. 

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