This Supreme Court Case Could Take a ‘Wrecking Ball’ to Separation of Church and State

Amy and David Carson were high school sweethearts. They met at Bangor Christian Schools, a private religious K-12 school in Bangor, Maine, when they were in their early teens. Their siblings attended the school. Family members have taught there. “It’s quite an extended family community,” Amy Carson, 45, tells TIME.

Which was in part why Carson wanted her only child Olivia to attend Bangor Christian as well. “It’s very important, the value this school has,” she says. “They also have an extremely strong educational platform.”

The Carsons have lived in Glenburn, Maine, just outside Bangor, for 25 years. The roughly 4,500 person town sits in a region of rural Maine that doesn’t have a public high school. Instead, residents qualify for Maine’s tuition assistance program, meaning the state gives parents taxpayer money that can be spent to send their child to a different public school or an approved private school.

But parents can’t use the program to pay for Bangor Christian. Maine says it will not fund the attendance of schools that provide religious education—a rule aimed at preventing public funds from being used for religious activity. So while Olivia, now 19, attended Bangor Christian from kindergarten through her high school graduation this May, this meant the Carsons paid entirely out of pocket for tuition, which costs $5,700 this school year for students in 6th through 12th grade.

On Dec. 8, the U.S. Supreme Court will hear arguments on whether Maine’s policy violated the Carsons’ constitutional rights. In 2018, the family joined a lawsuit with Troy and Angela Nelson, another Maine family who wanted to use the tuition assistance program to send their son to a religious school but weren’t able to, alleging the state violated both the religion clauses and equal protection clauses of the Constitution by excluding schools that provide religious instruction from its tuition program. A federal district court and the 1st Circuit Court of Appeals disagreed, ruling that Maine’s policy was in standing with the separation of church and state. But the families appealed with the support of the libertarian law firm the Institute for Justice, and the Supreme Court will now determine who was right.

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The Carsons will not benefit from the tuition program even if the high court agrees with them; Olivia Carson already graduated. But, Amy Carson says, the case has grown beyond her own family. “It’s about really trying to open this up for other families,” she tells TIME. Her co-plaintiffs, the Nelsons, say they wanted their son to attend Temple Academy, a Christian school in Waterville, Maine, for high school, but have had to send him to a secular school that qualified for the tuition assistance program instead because it was more affordable.

It’s not clear the outcome of the case would be that simple. In its filing, Maine has pointed to the Maine Human Rights Act, a law that prohibits discrimination on the basis of sexual orientation, arguing that “accepting public funds would result in a significant change to how [the two schools] operate,” including that they would “likely” no longer be able to refuse to hire gay people. Both Bangor Christian and Temple Academy have already said they would not accept funds from Maine’s tuition program if it means they have to change their policies, including hiring and admissions practices, according to Maine’s filing. (Representatives for Temple Academy did not respond to requests for comment, and the principal of Bangor Christian Schools declined to comment when reached by TIME.)

But regardless of what happens to the Carsons and Nelsons, their suit could reshape the separation of church and state well beyond education. Carson v. Makin is only the latest in a series of recent cases that have asked the Supreme Court to weigh in on religious liberty—whose recent rulings have generally favored plaintiffs who say their religious rights have been violated. If the court rules broadly, it could have an enormous impact on whether religious institutions can benefit from state funding.

The court could “eviscerate” laws that restrict public funding of religious education and open the door for taxpayer dollars to go towards religious instruction, including instruction to discriminate against LGBTQ people or people of other faiths, argues Rachel Laser, the President and CEO of the nonprofit Americans United for Separation of Church and State, which filed a brief in support of Maine with other religious and civil rights organizations.

“We’re looking at potentially another wrecking ball to the wall of separation between church and state,” says Jennifer Pizer, law and policy director for Lambda Legal, a national legal organization that advocates for LGBTQ rights. “The fundamental notion that none of us should be required to pay for other people’s practice of religion is about as basic as it gets, and yet we’re seeing, in these education contexts, that notion flipped on its head.”

On the other hand, the plaintiffs and their supporters argue the state is discriminating against religious people by excluding their preferred schools from this program. “The state is telling citizens: you can have a government benefit, or you can exercise your religious freedom,” argues Michael Bindas, a senior attorney with the Institute for Justice who is representing the Carsons. “It’s just a choice that no parent should have to make.”

The latest step in a battle over religious freedom

The case out of Maine comes on the heels of other rulings that have dealt with the issue of public funding being directed toward religious institutions.

In 2017, the Supreme Court ruled 7-2 in Trinity Lutheran Church of Columbia, Inc. v. Comer that Missouri had violated the right to free exercise of religion under the First Amendment when it excluded a church from a state program providing funds to resurface playgrounds.

And in 2020, the court issued a 5-4 decision in Espinoza v. Montana Department of Revenue—also brought by the Institute for Justice—ruling that Montana violated the free exercise clause by excluding religious schools from a tuition-assistance program for parents sending their children to private schools. The makeup of the court has grown more conservative since then, with the arrival of Justice Amy Coney Barrett, who was nominated by then-President Trump in September 2020.

While the Espinoza ruling determined it was unconstitutional for a state to exclude religious entities from public funding programs simply because of their religious status, Carson will determine whether it’s also unconstitutional to exclude institutions because the state funding would go toward religious activity, such as openly teaching a particular religion. In the view of plaintiffs, Bindas says, that distinction is “hair splitting.”

The families argue it’s unfair that some schools with religious traditions, such as weekly chapel meetings are allowed, to qualify for Maine’s program, giving the example of the private, all-boys Cardigan Mountain School in New Hampshire, which Chief Justice John Roberts’ son attended and which describes itself as “a nonsectarian educational institution founded in the Judeo-Christian tradition.”

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But while the plaintiffs argue that Maine’s policy violates their religious rights, state officials say religious schools don’t provide an education that is “equivalent to a public education,” arguing that they often teach religious views that might conflict with a public school curriculum and might discriminate against certain teachers and students in hiring and admissions.

The case pits the First Amendment’s free exercise clause against its establishment clause. The former protects a person’s right to practice religion, while the latter prohibits the government from establishing or favoring a religion.

“Religious schools can and do advance their own religion to the exclusion of all others, discriminate in both the teachers they employ and the students they admit, and teach religious views inimical to what is taught in public schools. Parents are free to send their children to such schools if they choose, but not with public dollars,” Maine Attorney General Aaron Frey said in a statement. “I am confident that the Supreme Court will recognize that nothing in the Constitution requires Maine to include religious schools in its public education system.”

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But some legal experts think it’s likely that Carson v. Makin will become an extension of Espinoza. Douglas Laycock, a University of Virginia School of Law professor and an expert on religious freedom who filed a brief in support of the parents in this case, called Maine’s argument “completely untenable after Espinoza.”

“The concept of a religious institution that doesn’t do anything religious is pretty much an empty set,” Laycock says. “It’s a distinction based on a difference that doesn’t exist in the real world.”

Bindas says it’s not about the government directly funding religious schools, which would receive money indirectly if a family chose to send their children there. “This is not a situation where the government is funding schools,” he says. “The government is funding families in allowing them to decide where to use this benefit.”

“We’ve never, in this country, had a complete wall of separation between church and state, but the current court has been issuing decisions that have reduced the establishment clause to little more than a shabby old picket fence,” says Kevin Welner, a professor at the University of Colorado Boulder School of Education who studies educational policy and law. “If the court keeps going in that direction, it is transformative. It does change the nature of society.”

Tension between religious freedom and LGBTQ rights

Though it is not being directly litigated, Carson also raises questions about the conflict between religious freedom and LGBTQ rights. In addition to teaching religion and instilling a “Christian worldview,” Maine alleges in court filings that both Bangor Christian and Temple Academy discriminate against people of other religions and LGBTQ teachers and students.

At Bangor Christian Schools, students who are transgender or openly gay may be suspended or expelled because of their sexuality or gender identity, and the school does not hire transgender or gay teachers, according to a brief filed by Maine officials.

Temple Academy, the Christian school where the Nelsons had hoped to send their children, “will not admit a child who lives in a two-father or a two-mother family,” nor students who are transgender or gay. Its employment agreement for teachers also includes an acknowledgement that “God recognize[s] homosexuals and other deviants as perverted,” according to the Maine filing.

And advocates worry that a ruling in favor of the plaintiffs could result in taxpayer money going to schools that discriminate against LGBTQ students and school employees.

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“The door was opened with the Espinoza case, and the door might be blown off its hinges with the decision in this case,” Pizer says. “I am worried that this Supreme Court has moved in a direction that facilitates discrimination in new and dangerous ways, not just for LGBTQ people, but for women, for religious minorities, for all minorities.”

(Bindas, the Carsons’s attorney, called Maine’s concerns about LGBTQ discrimination “an attempt to deflect from the discrimination that the state of Maine is engaged in,” referring to his clients’ claims of constitutional violations.)

A boost to the school choice movement

Education experts also think this case could boost the school choice movement—which supports programs that enable parents to use public funds to send their child to schools beyond a traditional public school—and strengthen private education at the expense of public education. Roughly 10% of K-12 students are enrolled in private schools in the U.S, and 7% are enrolled in public charter schools. “That stands to grow significantly,” says Samuel Abrams, director of the National Center for the Study of Privatization in Education at Teachers College, Columbia University, if cases like Carson v. Makin make private schools more accessible and affordable options.

Maine is one of a few states, including Vermont and New Hampshire, that offer this kind of tuition program for students who don’t have a public school option in their community. In June, a federal appeals court blocked Vermont from excluding religious schools from its tuition program.

If the Supreme Court rules in favor of the plaintiffs in Carson, Abrams expects other states, particularly rural ones, could face pressure from religious communities to create similar programs that include religious schools.

That possibility alarms Laser of Americans United for Separation of Church and State. “Religious instruction should never substitute for public education,” she says, “What’s at risk is further redefining religious freedom, to turn it into a license to discriminate.”