The U.S. Supreme Court decided this Tuesday that Maine violated the Constitution when it decided to exclude religious schools from a state-sponsored program that gives families the money to pay private school tuition in areas where no public schools are available. The opinion was written by Chief Justice John Roberts and supported by the other five justices from the “conservative” wing of the Court.
The State of Maine created a program that allows families living in isolated, rural areas, where the necessity of creating public schools is financially impossible for the state, to ask for school vouchers provided by the state government to pay the tuition of private schools. As of today, there are about 5,000 students who live in districts with no access to a public school and who qualify for the program.
However, in order for a private school to be approved for receiving the school vouchers, it must follow a set of requirements set up by the state. One of those requirements was that the government cannot fund schools that are “sectarian”, meaning that religious schools could not opt for the program. The case in question, called Carson v. Makin, hinged around the wish of two families to use the money of the program to send their kids to a Christian school in rural Maine.
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The Court decided that Maine violated the First Amendment
According to the Court, the program violated the Free Exercise Clause of the First Amendment, which the Court has previously decided protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Chief Justice Roberts argued that the Maine law does not hold scrutiny and that the program “specifically carved out private religious schools from those eligible to receive such funds” and that in order for this to be considered constitutional, a state must argue that it is pursuing “interests of the highest order” and that it must be narrowly “tailored” to pursue such interests.
The state of Maine argued that the decision to exclude religious schools from the voucher program was done in order to pursue the principle of separation of state and church that is derived from the establishment clause of the First Amendment. However, the Court considered that allowing parents to decide to use the money in religious schools is not a violation of the Establishment clause, as it is a “neutral benefit program” where the public funds are allocated based on the “independent choices of private benefit recipients.”
The decision was opposed by the three “liberal” justices of the bench, who argued that there is nothing on the Constitution that requires Maine to not discriminate against religious schools when implementing this school voucher program. Justice Breyer, who wrote the dissenting opinion said that while he agrees that a state could provide state funds to religious schools in these types of programs without violating the Establishment Clause, they are not required to do so. Breyer also questioned the long-term consequences of this opinion, asking if state governments will have to fund religious schools in the future.
The consequences of the Court’s decision on school choice and religious liberty
While the specific program in question is fairly small — only 4,000 students are directly benefitted from the Maine school voucher — the consequences of the Supreme Court’s decision might be much larger, especially in the issue of charter schools across the country. If the logic behind the decision on Carson is followed, then it raises the question if state governments must also make available funds to religious schools if they have created school choices programs.
The recent case discussed by the Court is also a continuation of similar decisions made in previous years over the thorny issue of the relationship between state and religiously affiliated schools. In 2017, the Court decided that Missouri did not have the right to exclude religious schools from a grant destined to resurface playgrounds, more recently, the court also ruled that a Montana program that funded private schools must also include religious schools in order to remain compliant with the free exercise clause of the First Amendment.