U.S. Supreme Court

Supreme Court sees 'discrimination against religion,' strikes down state ban on aid to religious schools

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The U.S. Supreme Court ruled 6-3 Tuesday that Maine violated the free exercise clause when it banned state tuition assistance at schools that teach religion but not at most other private schools.

Chief Justice John Roberts wrote the majority decision. One of the dissenters was Justice Sonia Sotomayor.

“This court continues to dismantle the wall of separation between church and state that the framers fought to build,” Sotomayor wrote in her dissent. “With growing concern for where this court will lead us next, I respectfully dissent.”

The high court has not yet issued decisions in cases seeking to overturn Roe v. Wade and seeking to expand Second Amendment protection to carrying a gun outside the home.

The Maine tuition assistance program before the Supreme Court requires districts that don’t operate a public high school to pay tuition, up to a capped amount, at a public or private school of the parents’ choice. The private school must be “nonsectarian.”

The plaintiffs are David and Amy Carson, whose daughter attended high school at Bangor Christian Schools, and Troy and Angela Nelson, who wanted their daughter to attend Temple Academy in Waterville, Maine. Neither school qualified as nonsectarian.

Roberts said the case could be resolved through principles established in two prior cases, Espinoza v. Montana Department of Revenue and TTrinity Lutheran Church of Columbia v. Comer.

“We have repeatedly held that a state violates the free exercise clause when it excludes religious observers from otherwise available public benefits,” Roberts wrote.

Espinoza held in 2020 that Montana couldn’t ban schools from a scholarship program because of their religious status. The case didn’t answer whether a state can exclude schools that use the aid to teach religion.

Trinity Lutheran held in 2017 that a church’s free exercise rights were violated when it was denied a state grant to resurface its playground because it was a religious institution.

Maine’s decision to exclude religious schools from its tuition assistance program “promotes stricter separation of church and state than the federal Constitution requires,” Roberts said. And the state’s establishment clause interest “does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

Justices Stephen Breyer and Sotomayor wrote dissents. Breyer’s dissent was joined by Justice Elena Kagan and mostly by Sotomayor.

Breyer’s dissent noted the wording of the First Amendment’s religion clauses, which provide that government “shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

“The court today pays almost no attention to the words in the first clause while giving almost exclusive attention to the words in the second,” Breyer wrote.

Roberts responded to Breyer’s argument. Breyer “stresses the importance of ‘government neutrality’ when it comes to religious matters,” Roberts wrote, “but there is nothing neutral about Maine’s program. The state pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”

Roberts also said the dissenters were also wrong when they argued that the majority decision says Maine “must” fund a religious education.

Maine has other options, Roberts said. It could expand the reach of its public school system; increase the availability of transportation to schools; provide some combination of tutoring, remote learning and partial attendance; or operate boarding schools of its own.

The case is Carson v. Makin.

Hat tip to SCOTUSblog, which had early coverage of the decision.

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