A Maine tuition-assistance program that excludes faith-based schools discriminates based on religion, a seemingly receptive U.S. Supreme Court was told Dec. 8.
The high court heard oral arguments regarding the constitutionality of Maine’s school-choice program, and several of the justices appeared skeptical of the state’s defense of its refusal to include schools that teach their religious beliefs.
The program, which the First Circuit Court of Appeals in Boston upheld, assists families in the many small towns in the state that do not operate secondary public schools and the smaller number that have no elementary schools. Those districts are required to pay tuition up to a legal limit at a public or private school elsewhere of the parents’ choosing. To qualify for the program, however, private schools must be “nonsectarian,” a category that disqualifies any religious school that promotes the faith with which it is identified.
Religious freedom advocates have asked the Supreme Court to clarify that unconstitutional discrimination extends not just to the identity of a religious school chosen by parents with a generally available public benefit but also to the teaching and actions of the institution.
“Maine’s sectarian exclusion discriminates based on religion,” Michael Bindas, a lawyer for the parents challenging the program, told the justices. The First Circuit Court “was wrong” in making a “status-use distinction” regarding the schools and the use of funds they receive by the parents’ choice, he said. No basis exists for such a difference, either in the high court’s rulings on the First Amendment’s guarantee of free exercise of religion or in common sense.
“Religious schools, after all, teach religion, just as a soccer team plays soccer or a book club reads books,” said Bindas, senior attorney for the Institute of Justice. “Yes, it is part of what they do. It is also part of who they are.
“It is only because of religion that they are excluded. You can call that discrimination based on religious use. You can call it discrimination based on religious status. Call it what you will. Either way it is religious discrimination, and either way it is unconstitutional.”
Maine and the U.S. Department of Justice (DOJ) defended the state program before the high court. In doing so, the DOJ reversed the position held by the Trump administration, which supported the parents who brought a lawsuit.
Christopher Taub, Maine’s chief deputy attorney general, told the justices the state “is determined that as a matter of public policy public education should be religiously neutral.”
The parents in the case “are not being discriminated against,” he said. “They simply are not being offered a benefit that no family in Maine is entitled to.”
The schools “that would not be OK are the ones that are instilling religious beliefs in children,” Taub said. “There is not a school that instills religious beliefs that would be eligible for our program.”
One of the members of the legal team representing the Maine parents expressed optimism after the oral arguments.
“We are hopeful for a 6-3 win for the parents today, and their right to educate their children as they deem best,” said Jonathan Whitehead.
Jonathan and his father, Michael, are Southern Baptists who practice in the Kansas City area and represent the Maine parents along with lawyers from the Institute for Justice and First Liberty Institute. Jonathan Whitehead is a trustee of the Southern Baptist Ethics & Religious Liberty Commission (ERLC).
The ERLC filed a friend-of-the-court brief in March that asked the Supreme Court to review the lower court’s decision and another in September that urged the justices to support the parents challenging the religious rule in Maine’s program.
Describing it as a “key religious liberty case,” Chelsea Sobolik, the ERLC’s director of public policy, said after the oral arguments, “Parents in Maine should have the opportunity to send their children to a school that is religiously affiliated. The ERLC, in our brief, highlighted that Maine did not merely exclude religious schools – it discriminates against them.”
Meanwhile, Rachel Laser, president of Americans United for Separation of Church and State, expressed concern after the oral arguments, saying the high court’s conservative justices “may be poised to turn America’s foundational principle of religious freedom on its head. That principle has never been understood as requiring the government to fund religious education, but several justices seem prepared to reinterpret it to mandate exactly that.”
The Supreme Court has ruled in favor of equal access to public benefits for religious adherents and groups in previous opinions on the basis of religious status, and Michael Whitehead expressed hope the justices would “take the next logical step in this area of law.”
Maine “says it can still discriminate against religious ‘use’ of public funds,” Jonathan Whitehead said in a written release. “The momentum of the equal access precedents seems to be that the State can’t discriminate against religious status or use. Free exercise [of religion] means both religious beliefs and religious actions must be protected.”
The high court’s liberal wing of three justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – seemed resistant to Bindas’ arguments on behalf of the parents.
In response to questioning by Breyer, Bindas said, “This program does not fund schools. It funds families. [As the high court held in previous decisions] that private, independent choice severs the link between government funds and religious instruction.”
Chief Justice John Roberts and the court’s conservative wing appeared skeptical of the reasoning in support of Maine’s exclusion of faith-based schools.
Roberts presented to Taub a scenario regarding two schools operated by different religions. One looks “just like a public school, but it’s owned by religion,” Roberts said. The other’s doctrine means “the school is infused in every subject with their view of the faith,” he said.
The first school would be eligible for Maine’s tuition-assistance program, but the second would not, Taub acknowledged.
“So it is the beliefs of the two religions that determines whether or not their schools are going to get the funds or not,” Roberts said. “And we have said that that is the most basic violation of the First Amendment religion clauses, for the government to draw distinctions between religions based on their doctrine.”
Taub replied, “[W]e’re not drawing those distinctions based on doctrine. We are drawing those distinctions based on what the school is going to promote.”
Maine’s tuition-assistance program included faith-based schools until a 1980 interpretation by the state’s attorney general resulted in a change.
A decision in the case, which is Carson v. Makin, is expected before the high court adjourns next summer.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)
