Supreme Court quietly hacks away at the separation of church and state in latest decision

In the most recent series of Supreme Court decisions released Tuesday morning, the court ruled that Maine may not continue its state-run tuition program that currently excludes funding toward religious schools. This decision is the latest ruling in a series of cases that seek to prevent the exclusion of religious organizations from state-funded programs.  

The case at hand, Carson v. Makin, arose over a dispute regarding a state program that provides assistance to families in Maine in rural communities that lack public secondary schools in order to send children to schools in other districts. Under the program, families can elect to sign contracts with public schools outside of their home districts, or they may choose to receive tuition assistance at any eligible private school. According to the text of the state law, any private school that is “a nonsectarian school in accordance with the First Amendment of the United States Constitution” is acceptable.  

More than half of Maine’s 260 school districts do not have their own public schools, largely on account of the state’s sparse population. When two families, both of whom live in districts without public schools, opted to send their children to two private religious schools—Bangor Christian School and Temple Academy—they filed suit, citing that the law’s “nonsectarian” requirement stood in violation of their First Amendment rights. In a 6-3 ruling today, with the court’s three liberal judges in dissent, the Supreme Court sided with the families. 

“There is nothing neutral about Maine’s program,” Chief Justice John Roberts wrote in the case’s majority opinion. “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”   

That said, according to the state law, Maine will provide assistance for attendance to any school, including certain religious institutions, should it provide “an education comparable to the education students would receive if their community operated a public school”—institutions that cannot teach explicitly religious material.  

Judges in dissent cited concern regarding the court’s direction and its increasingly apparent interest in striking down state initiatives that exclude religious institutions in the name of program neutrality.  

“What a difference five years makes,” Justice Sonia Sotomayor wrote in dissent, referencing the 2017 Trinity v. Comer case in which the court ruled that a Missouri state program denying a grant to a religious school playground while providing similar funds to non-religious programs was in violation of the First Amendment. “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.” 

In similar dissent, Justice Stephen Breyer wrote in concern of the court’s pro-religion tendencies, namely that the court has not ever previously decreed how a state must, rather than may, use state funds to pay for religious tuition. “What happens once ‘may’ becomes ‘must’?,” Breyer wrote in his dissent opinion. “Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools?” 

Beyond the reach of Maine, this ruling creates precedent that when a state provides benefits to non-religious schools or institutions, regardless of the public amenity such a program aims to replicate, equal provisions must be extended to religious schools.