Maine cannot prevent parents from using the state’s publicly-funded tuition assistance program to send their kids to private religious schools, the U.S. Supreme Court ruled on Tuesday.
The 6-3 decision—the latest in a series of rulings favoring arguments for religious liberty—comes after civil-rights advocates had warned the case could take a “wrecking ball” to the separation of church and state.
The case, Carson v. Makin, was brought by two families who live in parts of rural Maine that don’t have a public school. Instead, families in those areas could use a taxpayer-funded tuition assistance program to send their kids to an approved private school—as long as the school was secular. Maine banned parents from using the money to send their kids to schools that provide religious education, a rule aimed at preventing public funds from being used for religious activity. The families challenged that rule, alleging it violated both the religion clauses and equal protection clauses of the U.S. Constitution.
On Tuesday, the Supreme Court sided with the families, with the conservative majority ruling that the ban violated the Constitution’s protection of the free exercise of religion.
“A state need not subsidize private education,” Chief Justice John Roberts wrote in the majority opinion. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
The closely-watched case pit the First Amendment’s free exercise clause, which protects the right to practice religion, against its establishment clause, which prohibits the government from establishing or favoring a religion. In his opinion, Roberts wrote that using the program to pay for religious schools would not violate the establishment clause, since the public funds flow to religious organizations through the “independent choices of private benefit recipients.”
Carson v. Makin is a significant case in a series of court battles over the question of whether public funding can be directed towards religious institutions—and marks a major development in broader debates over the separation of church and state. The decision is also the latest win for religious liberty groups before the Supreme Court’s 6-3 conservative majority. The vote split along ideological lines, with the court’s three liberal justices dissenting.
In her dissenting opinion, Justice Sonia Sotomayor argued that the decision “continues to dismantle the wall of separation between church and state that the Framers fought to build.”
Amy and David Carson, two of the parents who sued the state, tell TIME in a statement that they are “overjoyed that today’s decision will allow Maine families to choose the school that is best for their child.” Their lawyer, Michael Bindas, a senior attorney with the libertarian law firm the Institute for Justice, added that Tuesday’s decision makes clear that parents have a “constitutional right to choose [religious schools] for their children,” and the state cannot “deny them that choice in programs that allow for other private options.”
Why LGBTQ advocates are concerned
Religious-freedom groups are hoping the decision will enable more families to send their children to religious schools. But LGBTQ rights advocates and Maine officials argue the decision could result in taxpayer funding going to schools that discriminate against LGBTQ students and school employees.
“I am terribly disappointed and disheartened by today’s decision,” Maine Attorney General Aaron Frey said in a statement on Tuesday. “Public education should expose children to a variety of viewpoints, promote tolerance and understanding, and prepare children for life in a diverse society. The education provided by the schools at issue here is inimical to a public education. They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff.”
He said he plans to explore options that would ensure public money isn’t used “to promote discrimination, intolerance, and bigotry.”
The ruling is a win for the school choice movement, which supports programs that enable parents to use public funds to send their child to schools beyond traditional public schools—an option conservative legal groups have long supported. Kevin Roberts, the president of the conservative Heritage Foundation, said in a statement that the decision protects “parents who simply want to send their kids to schools that match their values.”
“We feel more choices are always better,” says Carroll Conley, executive director of the Christian Civic League of Maine. Conley attended one of the religious schools the plaintiffs hoped to send their kids to, Bangor Christian Schools, and served as headmaster of the school from 1992 to 2000. “It was so positive for me,” he says. “I want to see other families, regardless of their financial situation, have options.”
But Maine alleged in court documents that Bangor Christian Schools and Temple Academy, the other school the plaintiffs wanted their children to attend, 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. Noelle Shamlian, an alumnus of Bangor Christian Schools, told TIME in January that they were threatened with expulsion after they were outed as bisexual in 2019. (The principal of Bangor Christian Schools declined to comment on Shamlian’s allegations when reached by TIME in December.)
In its filing, Maine pointed to the Maine Human Rights Act, a law that prohibits discrimination on the basis of sexual orientation, arguing that religious schools would likely have to abide by the Act if they wanted to receive money from the tuition assistance program. Both schools have said they would not accept funds from the program if it meant they would have to change their policies, including hiring and admissions practices, according to Maine’s filing.
Representatives for Bangor Christian Schools and Temple Academy did not immediately respond to TIME’s requests for comment Tuesday.
Now, other religious schools may have to confront that question as well. The Roman Catholic Diocese of Portland, which operates several Catholic schools in the state, “has to see what the funding will entail and what the details for receiving it are,” diocese spokesperson Dave Guthro said in an email. “The diocese is certainly supportive of allowing families to have access to better educational choices,” he said.
Conley says he expects many religious schools will be hesitant to accept public tuition funding if it means changing their hiring or admissions policies or their curriculum, and he’s turning his attention now to the battle over whether the state’s anti-discrimination laws should apply to religious schools.
Sarah McDaniel, president of the Portland Maine Chapter of the LGBTQ rights group PFLAG, says she thinks the possibility of taxpayer money going to schools that may discriminate against LGBTQ students “compounds the harm some of our most marginalized youth will encounter.” Jenny C. Pizer, the acting chief legal officer for the LGBTQ advocacy group Lambda Legal, says she views the court’s decision as “a perverse continued demolition of what remains of the ‘wall of separation’ between Church and State erected by the Establishment Clause.” And 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, argues that the decision “is forcing taxpayers to fund religious education.”
“This nation was built on the promise of religious freedom, which has always prevented the state from using its taxing power to force citizens to fund religious worship or education,” Laser argues. “Far from honoring religious freedom, this decision tramples the religious freedom of everyone.”
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