Court strikes Maine school aid policy

6-3 ruling says state can’t exclude religious schools from tuition program

WASHINGTON — The Supreme Court ruled Tuesday that Maine may not exclude religious schools from a state tuition program, the latest decision by a conservative majority that has increasingly favored the role of religion in public life.

The vote was 6-3, with the court’s three liberal justices in dissent.

Chief Justice John Roberts, writing for the majority, said the ruling did not require states to support religious education. But states that choose to subsidize private schools, he added, may not discriminate against religious ones.

In separate dissents, Justice Sonia Sotomayor and Justice Stephen Breyer expressed dismay at the direction of the court in taking up matters of religion in the public sphere. Sotomayor said the decision was another step in dismantling “the wall of separation between church and state that the framers fought to build.”

The case, Carson v. Makin, No. 20-1088, in Tuesday’s ruling grew out of a lawsuit filed by families in Maine who send or wanted to send their children to two religious schools and were challenging an unusual program that requires rural communities without public secondary schools to arrange for students’ educations in one of two ways.

They can sign contracts with nearby public schools, or they can pay tuition at a private school chosen by parents so long as it is not religious. The decision Tuesday would force districts to pay tuition at religious schools as well.

Temple Academy in Waterville, Maine, and Bangor Christian Schools “candidly admit that they discriminate against homosexuals, individuals who are transgender and non-Christians,” Maine’s Supreme Court brief said.

The case was broadly similar to one decided by the court in 2020, Espinoza v. Montana Department of Revenue. In that case, the court ruled that states must allow religious schools to participate in programs that provide scholarships to students attending private schools.

Roberts, writing for the majority in the Montana case, said a provision of the state’s constitution banning aid to schools run by churches ran afoul of the U.S. Constitution’s protection of the free exercise of religion by discriminating against religious people and schools.

But the Montana decision turned on the schools’ religious status, not their curricula. There may be a difference, Roberts said, between an institution’s religious identity and its conduct.

The new case from Maine resolved that open question.

In his majority opinion Tuesday, Roberts rejected the argument that Maine should be free to try to replicate a public school experience, which does not include religious instruction. The private schools the state’s tuition program supports, he wrote, were themselves different from Maine’s public schools.

In dissent, Breyer wrote that the main goal of a public school is to offer a “civic education.” Sotomayor and Justice Elena Kagan joined all or most of Breyer’s dissent.