Washington — The Supreme Court's conservative majority on Wednesday appeared likely to side with Maine families who are seeking to use a state tuition assistance program to send their children to religious schools, a decision that could allow public benefits to flow more freely to such religious institutions.
Across nearly two hours of arguments in the case, known as Carson v. Makin, several members of the court's conservative wing indicated to lawyers defending the program that it was discriminating against schools on the basis of religion, which the parents who brought the suit argue violates their constitutional rights.
"With, say, two neighbors in Maine, in a neighborhood, and there is not a public school available, and the first neighbor says we're going to send our child, children, to secular private school, they get the benefit. The next-door neighbor says, 'Well, we want to send our children to a religious private school, and they're not going to get the benefit,'" Justice Brett Kavanaugh said. "That's just discrimination on the basis of religion right there at the neighborhood level."
In Maine, families who live in school districts that neither operate their own secondary school nor contract with another institution can receive public funds to send their children to their choice of public or private school. But private schools that are deemed "sectarian," or that promote religion or present material through a religious lens, are ineligible.
Maine has nearly 180,000 K-12 students, of which 4,546 secondary students attended private schools through either a contract for schooling or the tuition program.
Two sets of parents — David and Amy Carson and Troy and Angela Nelson — challenged Maine's tuition assistance program in 2018, arguing it discriminates on the basis of religion.
The Carsons send their daughter to Bangor Christian School and pay for her tuition out of pocket because the school's curriculum makes it ineligible for the state's aid program, according to filings with the Supreme Court. The Nelsons, meanwhile, use the benefit to send their son to Erskine Academy, a secular private high school, but want to send him to Temple Academy, which aligns with their religious beliefs. Temple, though, cannot be approved for tuition assistance because it provides a "biblically-integrated education," lawyers for the families told the court.
Bangor Christian School will not hire teachers who are transgender, and neither school will hire teachers who are gay or lesbian, according to a filing from the state to the Supreme Court.
The 1st U.S. Circuit Court of Appeals upheld Maine's tuition assistance program last year, ruling it doesn't constitute discrimination based on schools' religious status, and the parents appealed the decision to the Supreme Court.
Chief Justice John Roberts pressed Christopher Taub, Maine's chief deputy attorney general, on a number of hypothetical scenarios to examine how the state determines which schools are eligible for the aid program.
Roberts asked whether a school requiring students to attend a daily chapel service or teaches history from a religious perspective would be approved. What if one school is owned by a religious group with a doctrine of providing service to neighbors, but is not promoting its faith, and another religion runs a separate school that educates children in the faith?
"One religion says that's what they do with education, and the other religion says, no, we use it to propagate the 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 said. "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, too, argued that Maine is discriminating by treating religious schools differently than secular institutions.
"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," he said.
Taub told the court Maine is seeking to advance religious neutrality. In 20 years, the state has only identified three schools that sought to participate in the program, but were questioned about eligibility because of the nature of their activities, he said.
The first was a seminary, which was ineligible. The second disclosed its student life centered around its chapel and had a religious affiliation, and the third said it had a chapel where it held non-sectarian student assemblies, Taub said.
Justice Neil Gorsuch identified the second school as the Kent School, which was excluded from the tuition program because of its Episcopalian tradition, and the third as the Cardigan Mountain School, which was permitted to participate.
"Somebody in Maine, in Bangor, has to sit down and decide, Cardigan good, Kent bad, right?" he said.
The three justices on the liberal wing of the bench, though, seemed inclined to back Maine in the dispute. Justice Elena Kagan said the state created an "extremely cabined program" to accommodate a small number of students living in isolated areas of Maine, where the state decided it didn't have the resources to provide public schools.
"Why does the state have to subsidize the exercise of a right?" Kagan asked.
Justice Sonia Sotomayor noted families in the state who can receive the tuition benefit have the same choice as others throughout Maine: either get a free, public secular education or pay for religious schooling.
"They're being treated as everyone else is," she said.
Lawyers for the parents challenging the tuition assistance program told the Supreme Court in filings that the state's rules force them to choose between a public benefit and their right to send their children to religious schools.
"A private school can be unlike a public school in a whole host of respects — its admission policies, the tuition it charges, the instruction it offers — and still participate in the tuition assistance program. It is only when religion enters the picture that the state throws up its arms and says, 'Enough!'" they told the Supreme Court. "That Maine allows participating private schools to remain private in every respect save religion betrays its assertion that the program 'uses private schools to deliver a public education.'"
But Maine officials argue it is using private schools as part of its public education system, and the state is "declining to subsidize religious exercise."
"To be clear, religious organizations that are willing to provide education comparable to a public education are eligible to receive public funds through Maine's tuition program," the state told the Supreme Court in a brief. "In excluding sectarian schools, Maine is declining to fund a single explicitly religious use: an education designed to proselytize and inculcate children with a particular faith."
Now with a 6-3 conservative majority, the Supreme Court has in recent years been more sympathetic to religious rights and schools in disputes involving public funding. Last year, the high court ruled 5-4 that states cannot exclude schools from receiving public funds based on their religious status or identity.
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