- The Washington Times - Tuesday, June 21, 2022

A state that offers to pay tuition for students attending private schools cannot refuse to pay when the school is religious, the Supreme Court ruled Tuesday, shooting down a voucher program in Maine.

In a 6-3 ruling, the justices said the First Amendment requires the state to be neutral in spending decisions, which means a program that is generally open to all cannot shut its doors when a religious applicant appears.

“The state pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion,” Chief Justice John G. Roberts Jr. wrote for the court.



He said Maine’s program isn’t the state funding religious schools so much as it is offering money to parents for education at religious schools.

Justice Stephen G. Breyer, in dissent, said the majority was paying too much attention to the First Amendment’s free exercise clause, which protects freedom of worship, and not enough to the establishment clause, which limits the government’s involvement with religious institutions.

The result, he said, is a system that permits religion to operate without government sponsorship or interference. He acknowledged the tension between the two sides but said states must have some leeway in decisions.


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“In my view, Maine’s nonsectarian requirement falls squarely within the scope of that constitutional leeway,” Justice Breyer wrote.

Maine’s system applies to communities where there aren’t secondary public schools and the school districts instead offer to pay tuition for students to attend public or private secondary schools elsewhere in the state. 

The state required that the schools be accredited, teach English and maintain a ratio of no more than 30 students per teacher.

The state enacted the law in 1981 after deciding that evolving jurisprudence under the First Amendment’s establishment clause prevented public spending for religious schools.

Two families challenged that law in 2018. A district court and the 1st U.S. Circuit Court of Appeals sided with Maine.

The appeals court said Maine’s program acted in the stead of public education, which means the state has significant leeway to decide whether a private school meets the state’s standards.


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Chief Justice Roberts said that is not how the law reads.

His ruling was joined by the court’s five other Republican-appointed members of the court: Justices Samuel A. Alito Jr., Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

The case is the latest in a string of decisions pushing back against states wary of public money going to religious causes.

In 2017, the justices ruled against a Missouri law that barred churches from applying for funds to upgrade playgrounds. In 2020, the court ruled that Montana couldn’t block tuition payments from going to private schools because of their religious affiliations.

The majority said the Maine decision follows directly from those rulings.

Justice Sonia Sotomayor, writing her own dissent, said those earlier cases were wrong, too.

“This court continues to dismantle the wall of separation between church and state that the Framers fought to build,” she wrote.

She and Justice Elena Kagan also joined Justice Breyer’s dissent arguing for states to have more leeway.

“We have made clear that states enjoy a degree of freedom to navigate the Clauses’ competing prohibitions,” Justice Breyer wrote. “This includes choosing not to fund certain religious activity where states have strong, establishment-related reasons for not doing so.”

School choice and faith-based groups cheered and said the court made a “landmark” decision.

“This is a thunderclap for education freedom,” said Tommy Schultz, CEO of the American Federation for Children, a school choice advocacy group.

Cardinal Timothy M. Dolan, head of the New York Archdiocese, said it was fitting that the decision involved Maine, home of Sen. James G. Blaine, who in the 1870s spearheaded an anti-Catholic movement to limit support for sectarian schools.

“The Supreme Court has rightly ruled that the Constitution protects not just the right to be religious but also to act religious,” Cardinal Dolan said.

Edward Ahmed Mitchell, national deputy director at the Council on American-Islamic Relations, also welcomed the ruling.

“By striking down a law that barred students from receiving tuition assistance for private school simply because their school of choice has a religious character, the court has preserved the constitutional rights of Christians, Muslims, Jews and many other students of faith,” he said.

The American Humanist Association worried that states would expand the use of taxpayer money for religious purposes.

“The extreme religious majority of the Supreme Court continues to dangerously undermine past precedent and further dismantle the wall of separation of church and state,” said Monica Miller, the group’s legal director.

The National Education Association said the ruling undermines access to public education.

“Forcing American taxpayers to fund private religious education — even when those private schools fail to meet education standards, intentionally discriminate against students, or use public funds to promote religious training, worship, and instruction — erodes the foundation of our democracy and harms students,” said NEA President Becky Pringle.

Chief Justice Roberts said in his ruling that Maine is already funding a number of private schools that differ from the state’s standards.

He said the state isn’t required to fund the schools. It could find money to build schools to accommodate all students, or it could expand busing to get students to existing but underused schools.

Once the state offers money to parents, though, it cannot refuse based on the religious nature of the parents’ choices.

Republican lawmakers said the ruling restores America’s founding principles of religious liberty.

“This is America. The government cannot establish a religion, but it also cannot exclude people of faith from government programs simply because they are religious,” said Sen. James Lankford, Oklahoma Republican.

Rep. Jared Huffman, California Democrat, saw danger signs in the ruling.

“Separation of church and state just became unconstitutional. Our radical SCOTUS continues to unravel fundamental rights and serve up ‘deliverables’ for the extreme right wing,” he posted on Twitter.

The case is Carson v. Makin.

• Stephen Dinan can be reached at [email protected].

• Alex Swoyer can be reached at [email protected].

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