Maine’s OK with religious schools if not too religious

Decades ago, the Supreme Court ruled that the First Amendment’s prohibition of “establishment” of religion was violated if the government supplied maps to religious schools, but not if it supplied books. So, Sen. Daniel Patrick Moynihan, D-N.Y., mischievously wondered: What about atlases, which are books of maps?

Now comes another occasion for jurisprudential hairsplitting about contacts between the government and religious schools. At the court’s conference on April 1, the nine judicial brows will be furrowed as they consider whether to hear a case from Maine that poses this question: Is it constitutional for that state to say that parents can use state aid to pay tuition at religious schools if the schools are not too religious. If, that is, they are not excessively serious about religion, with excess to be determined by government officials measuring such things with some unspecified theological micrometer.

Last year, in a case from Montana, the court held that if a state decides to subsidize private education, it cannot disqualify private schools solely because of their status as religious. Now, the court is being asked (by a pair of parents and the Institute for Justice) to decide whether Maine can disqualify a school that has a religious status because of the use the school would make of the tuition. Maine says, in effect, it can disqualify a religious school that takes its status too seriously.

In the many Maine school districts that neither operate a public secondary school nor contract with a school to educate district students, parents can use state funds to pay tuition at a public or private school. But only if the school is “nonsectarian.” Maine says the school must not promote “the faith or belief system with which it is associated” and must not present the material it teaches “through the lens of this faith.” That is, parents can pick only religious schools that are not very serious about religion.

In the 2020 Montana case, the court acknowledged that some justices “have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status.” The court did not need to address this because Montana discriminated solely on a school’s status. If, however, the court agrees to hear the

Maine parents’ case, the court can clarify whether a state can make a school’s participation in a tuition program conditional on the school submitting to government officials’ intrusive investigations of the school’s religiosity. The distinction between the religious status of a school and the use to which a religious school might put funds it receives as tuition often is a distinction without a difference: Status and usages are inseparable.

Decades ago, the court elaborated a three-part test of whether a statute pertaining to government contact with religion violates the proscription of “establishment” of religion. One of the three parts is: Does the statute require “excessive government entanglement with religion.” Surely Maine is plunged into deep entanglements when it undertakes to decide whether this or that religious school’s practices are below the state’s threshold of permissible religiosity.

Usually, questions about possibly excessive government entanglements with religion have involved governments somehow endorsing or promoting religion (e.g., crèches on public property, or prayers at public events). If on April 1 the court agrees to hear the Maine case, it can erase the unhelpful distinction between religious status and religious use, a distinction akin to the one it once made between books and maps.