Ruling backs public money for religious schools
The Supreme Court on Tuesday extended its support for religious schools, ruling that parents who send their children to these institutions have a right to tuition aid if the state provides it to similar private schools.
The 6-3 decision in the Carson vs. Makin case from Maine could open the door to including religious schools among the charter schools that are privately run but publicly financed.
Previously the high court had said that giving public funds to church schools violated the First Amendment’s ban on an “establishment of religion.”
But over the last five years, the court’s conservative majority has flipped the equation and ruled it is unconstitutional discrimination to deny public funds to church schools simply because they are religious. Maine has an unusual subsidy program because many of its small towns do not have a public high school. In such cases, students may enroll in a private school and the state pays their tuition.
Since 1980, however, the state has not extended these subsidies to students in church schools, apparently concerned it would be unconstitutional to do so. The court majority said Tuesday that was a mistake.
Chief Justice John G. Roberts Jr. said that discrimination based on religion “was odious to our Constitution and could not stand.”
“The state pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion,” he said, and thereby violates the First Amendment’s protection for the “free exercise of religion.”
In dissent, the three liberal justices accused the majority of knocking down the barriers against government support for religion.
“This court continues to dismantle the wall of separation between church and state that the framers fought to build,” said Justice Sonia Sotomayor. “This court should not have started down this path five years ago. … Today, the court leads us to a place where separation of church and state becomes a constitutional violation,” she said, closing her dissent “with growing concern for where this court will lead us next.”
In response, Roberts rejected the idea that the court’s opinion means Maine “must” fund religious education. “Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not ‘forced upon’ it,” he said.
Among the six conservative justices in the majority, all of them attended Catholic schools except for Justice Samuel A. Alito Jr., who went to public elementary and secondary schools in New Jersey.
Tuesday’s ruling highlights the court’s profound shift on religion.
The conservative justices cast aside the principle of church-state separation and argued it grew from an anti-catholic bias in the late 19th and early 20th centuries.
“It was an open secret that ‘sectarian’ was code for ‘Catholic,’” Roberts wrote in 2020, describing the common state laws that prohibit sending tax money to schools affiliated with a church. These restrictions were “born of bigotry” and “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general,” he said in Espinoza vs. Montana.
Justices Clarence Thomas and Neil M. Gorsuch have said they would go further and uphold laws or policies that favor religion.
“The modern view which presumes that states must remain … virtually silent on matters of religion is fundamentally incorrect,” Thomas wrote in an earlier school case. “Properly understood, the Establishment Clause does not prohibit states from favoring religion.”
The court’s opinion on Tuesday says nothing about charter schools, but some legal experts on the right predict they may face a challenge if school officials refuse to consider funding religious options.
“The court said again no state may set up a program of private school choice and exclude funding for faith-based schools,” said Nicole Garnett, a Notre Dame law professor.
But it is not clear that charter schools will be deemed a program of private school choice, she said, and “it’s probably a long way down the road” before the Supreme Court considers the question.
Advocates for school choice and religious liberty praised the decision.
“If the pandemic has taught us anything, it’s that parents want and deserve better school choices for their kids. Religious families, and even families that aren’t religious but see the value in faith-based schools, said Ashley Mcguire, senior fellow with the Catholic Association.