Will the Supreme Court Finally End Discrimination Based on Religion in School Choice Programs?

COMMENTARY: The court will hear oral argument in ‘Carson v. Makin’ Wednesday.

United States Supreme Court building in Washington, D.C.
United States Supreme Court building in Washington, D.C. (photo: Unsplash)

The Supreme Court is set to hear oral argument Wednesday in Carson v. Makin, an important religious-freedom case involving Maine’s tuition-assistance program for rural students. At the moment, it discriminates against Catholic and other Christian parents. The court — much to the indignation of progressive lobbyists — may put an end to that. 

Some background is in order. Many rural towns in Maine don’t have their own school system; more than half lack a secondary school. In areas without access to public schools, Maine allows students to attend other public or private schools at public expense. There is a catch, however. Parents can only choose “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” 

Maine applies the insulting “sectarian” label to any school that “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” So any “religious” school benefiting from its program must be religious in name only. Some schools with a religious founding are allowed to participate because the state concluded that the school curricula does not include any religious teaching.

According to the Supreme Court, the First Amendment guards against “excessive government entanglement with religion.” I can’t imagine a more entangled process than one involving government officials combing through the teaching materials of religious schools. 

Three Maine families in areas with no public secondary school would like to send their children to private, nonprofit Christian schools. They have filed suit, claiming that Maine’s “nonsectarian” requirement violates their First Amendment right to the free exercise of religion. 

The Supreme Court has dealt several blows recently to state laws barring “sectarian” entities from participating in state programs or receiving state funds. These “No-Aid provision” bans have a long and dark history. They were enacted in the late 19th century and called “Blaine Amendments” after Maine congressman James Blaine, who had tried and failed to incorporate such bans into the U.S. Constitution. “Sectarian” in this context was too often code for “Catholic.” 

Judge Kyle Duncan, now on the Court of Appeals for the 5th Circuit, observed that, “by 1890, twenty-nine states in all had incorporated into their constitutions explicit prohibitions against the allocation of public funds to sectarian schools and other institutions.” Interestingly, Maine did not adopt a “Blaine Amendment” to its own state constitution. Its “sectarian rule” was enacted by the Maine Legislature in 1980. Instead of taking an overtly anti-Catholic stance, Maine has chosen to discriminate equally against all religious schools. Small consolation. 

Just five terms ago, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Supreme Court reviewed a case where Missouri banned a church-run preschool from receiving a grant from the state’s scrap-tire-recycling grant program to resurface its outdoor playground. Chief Justice Roberts, writing for the majority, explained that “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.” Despite efforts by the education establishment to limit Trinity Lutheran’s reach, the Supreme Court last year declared unconstitutional Montana’s exclusion of religious schools from its tuition-assistance program. 

“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” wrote Roberts in Espinoza v. Montana Dept. of Revenue

Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurring opinion in Espinoza that is particularly relevant to the court’s resolution of Carson. The First Amendment, wrote Gorsuch, “forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.” 

In light of Trinity Lutheran and Espinoza, the Maine parents should have been handed an easy victory in court. Unfortunately, that is not what happened.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, which included retired Supreme Court Justice David Souter, coyly distinguished Espinoza from the Maine case. The panel claimed that no-aid provision at issue in Espinoza barred religious schools from participating in a state tax-incentive program solely because of the religious status of the schools. 

Maine’s “sectarian exclusion” rule, by contrast, focuses on what the school teaches through its curriculum and related activities and how the material is presented. The panel, clearly ignoring the Gorsuch concurrence, wrote: “Because Maine permissibly requires public educational instruction to be nonsectarian for reasons that reflect no hostility to religion, it betrays no hostility toward religion when it imposes a use-based ‘nonsectarian’ restriction on the public funds that it makes available for the purpose of providing a substitute for the public educational instruction that is not otherwise offered.” 

University of Baltimore law professor Kimberly Wehle, in a recent commentary piece for The Atlantic, questions whether the parents in Carson even have the right to sue. The schools these families desire for their children, she notes, have said that they won’t accept public-tuition payments if doing so would require compliance with the Maine Human Rights Act, which bars discrimination in employment based on sexual orientation and gender identity. 

Wehle reasons that since the schools of choice “are unwilling to participate in the funding in the first place,” a “ruling in their favor would not redress any concrete injury, which is required to access the federal courts.” It’s a clever, contorted and profoundly illiberal argument — 21st-century progressive academia in a nutshell. 

Fortunately, not all legal scholars are so blinkered ideologically. 

In a brilliant Newsweek commentary piece, Notre Dame law professor Richard Garnett and law student Olivia Rogers point out that the lower court’s distinction between religious status and religious use “makes no sense, especially in the context of schooling. After all, in many religious traditions, faith is integrated into formation, learning, education and development. For many schools, ‘religious’ is not simply what they are; it is also what they do.” What’s more, maintaining discriminatory barriers that exclude religious schools “fundamentally undermines parents' ability to freely exercise their religious beliefs by limiting their educational options.” 

Garnett and Rogers understand that many parents in the United States are turning to Catholic and other religious schools as partners in the crucial task of educating their children. And they want their children’s schools to be authentically religious. 

So now the ball is in the Supreme Court, and progressives who demand that public funds go only to secular schools are likely to be disappointed. The court will surely give the Maine parents a sympathetic hearing on Wednesday. And before the school year ends in June, discrimination based on religion in school-choice programs will probably be banned once and for all.

Andrea Picciotti-Bayer is the director of the Conscience Project.

U.S. Supreme Court Building

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