WASHINGTON – The Supreme Court’s conservative majority hinted Wednesday it may strike down a Maine prohibition on using public money for students to attend schools that offer religious instruction in a case with wide implications for education funding.
At issue is a relatively unusual program in Maine that provides subsidies for education in rural districts that don’t have their own high school. The state allows parents in that situation to use the money that would have been spent locally to send their children to other public or private schools – but not to programs that offer religious instruction.
During nearly two hours of argument, several of the high court’s conservative justices pressed Maine on how state officials draw a line between school curricula they view as too religious to qualify for the money and other private schools that may teach values that are based on religious principles but are not proselytizing for a specific faith.
Associate Justice Brett Kavanaugh framed the debate by hypothesizing about two neighbors, one who wants to use Maine’s subsidy to send a child to a school with religious instruction and another that favors secular private school.
“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,” Kavanaugh said. “That’s just discrimination on the basis of religion right there at the neighborhood level.”
Chief Justice John Roberts, meanwhile, and several of his colleagues pressed Maine’s attorney on how the state decides when a religious school crosses the line. Associate Justice Samuel Alito asked about a hypothetical religious school that instills values such as an obligation to make contributions to the community and that everyone should be treated with dignity. Would such a school, Alito asked, be eligible for funding?
“That would be very close to a public school,” Christopher Taub, Maine’s chief deputy attorney general, told the court. “What would make the difference is whether they’re being taught that your religion demands that you do these things.”
Alito fired back: “Well, then you really are discriminating on the basis of religious belief. What I described is, I think, pretty close to Unitarian Universalism, isn’t it?”
The case was filed by two families that wanted to use the state subsidy for religious education. They say Maine’s policy violates their First Amendment right to practice religion free from government interference. Maine counters that using public money for religious instruction would create a bevy of new problems, including how to accommodate students who belong to religions for which there are no schools.
The court’s liberal wing quizzed the lawyer representing the parents on what will happen if public tuition money flows to a religious school that, for instance, bars LGTBQ students in violation of anti-discrimination laws. It’s not clear, they noted, that religious schools would even accept public money if it opens them up to additional state regulation.
“These schools are overtly discriminatory, they’re proudly discriminatory,” said Associate Justice Elena Kagan. “Other people won’t understand why in the world their taxpayer dollars are going to discriminatory schools.”
Some experts see potential impact far beyond Maine if the Supreme Court rules in such a way that requires states to fund religious schools in programs where they currently do not. Depending on its reasoning, a ruling against Maine could implicate public funding for schools more broadly, even in traditional public districts without subsidies.
Such a ruling would also be a continuation of a series of decisions in recent years in which the high court’s conservative majority has sided with religious freedom claims.
In 2017, the court concluded that a Lutheran church in Missouri could apply for a competitive state grant that paid for playground resurfacing. Chief Justice John Roberts wrote in the majority opinion that Missouri’s attempt to deny that funding solely because the entity applying was a church was “odious to our Constitution” and “cannot stand.”
Last year, the court ruled that a Montana scholarship program could not exclude religious schools. Roberts, again writing for the court’s majority, noted that a state doesn’t have to provide money to private schools but if it chooses to do so, it can’t “disqualify some private schools solely because they are religious.”
But the court didn’t fully resolve the controversy, leaving unanswered a question about a subtle but important distinction: Lower federal courts have recognized a difference between denying taxpayer money to an entity because of its status as a religious institution and withholding money used for a religious purpose, like teaching the Bible.
In the Maine case, the Boston-based appeals court concluded last year that the funding was not denied because the schools are Christian, but rather because of the Christianity the schools teach. Even before Wednesday’s arguments, several of the high court’s conservative justices have questioned whether there’s really a difference between the two.