WASHINGTON – The Supreme Court on Tuesday shot down a state prohibition on using public money to attend schools that offer religious instruction, the latest case in which the high court has permitted taxpayer funds to be used for religious purposes.
At issue is a relatively unusual program in Maine that provides subsidies for education in rural districts that don’t have their own high school. The state allows parents in that situation to use the money that would have been spent locally to send their children to other public or private schools – but not to programs that offer religious instruction.
Chief Justice John Roberts wrote the opinion for a 6-3 majority.
“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” Roberts wrote. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”
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Given the number of recent rulings in which the nation’s highest court has come down on the side of protecting religious exercise, the outcome wasn’t a surprise. What’s less clear is how the decision may affect similar controversies, such as the use of taxpayer funding for religious schools outside of the narrow circumstances involved in the case.
Two families that wanted to use the state subsidy for religious education sued in 2018, asserting that Maine’s policy violated their First Amendment right to practice religion free from government interference. Maine countered that using public money for religious instruction would create a bevy of new problems – including how to accommodate students who belong to religions for which there are no schools.
The dispute was similar to one the Supreme Court considered in 2020. Chief Justice John Roberts wrote for a 5-4 majority that a Montana scholarship program could not exclude religious schools. Roberts said a state doesn’t have to provide money to private schools, but if it chooses to do so, it can’t “disqualify some private schools solely because they are religious.”
That decision dealt with a school that had religious ties but didn’t explicitly teach religion in the classroom. Lower federal courts have distinguished between denying taxpayer money to an entity because of its status as a religious institution and withholding money used for a religious purpose, like teaching the Bible. It’s a subtle distinction, but one with potentially wide implications: Some schools may have a sectarian affiliation, but their curriculum may look more or less like that of secular public schools.
In the Maine case, the Boston-based U.S. Court of Appeals for the First Circuit ruled for the state, concluding that the funding was not denied because the schools are Christian, but rather because of the Christianity the schools teach. Several of the high court’s conservative justices have questioned whether there’s a meaningful difference between the two.
The court’s conservative justices seemed to suggest during oral arguments in December that they would strike down the Maine prohibition. During nearly two hours of argument, several justices pressed Maine on how the state draws a line between schools it views as too religious and other private institutions that teach values that are based on religious principles but are not proselytizing for a specific faith.
The liberal wing of the court was worried about what would happen if public tuition money flows to a religious school that, for instance, bars LGTBQ students, in violation of anti-discrimination laws.