The Supreme Court of the United States issued a 6-3 decision on June 21 that the State of Maine cannot restrict its public education funds only to non-sectarian schools.

The case of Carson v. Makin centered on a program to provide free public education to children in rural areas of the state for whom public secondary schools are not available. The state provided tuition assistance for students to attend other schools (including private institutions) selected by their parents, provided that the schools were approved by Maine’s Department of Education.

To be approved, the private school must be accredited, non-sectarian, provide curriculum aligning with state standards and follow the state’s compulsory attendance rules.

A majority of the justices concluded that the non-sectarian requirement was a violation of the First Amendment’s “Free Exercise Clause.”

Chief Justice John Roberts, writing for the majority, asserted that “we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

Citing rulings in Trinity Lutheran Church of Columbia, Inc. v. Comer and in Espinoza v. Montana Department of Revenue as precedent, the majority opinion concluded: “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. 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. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.”

Justice Stephen Breyer delivered the dissenting opinion, critiquing the majority opinion for paying “almost no attention to the words in the first [Establishment] Clause while giving almost exclusive attention to the words in the second [Free Exercise Clause].”

Citing previous rulings, such as Cutter v. Wilkinson, Breyer wrote: “We have made clear that States enjoy a degree of freedom to navigate the Clauses’ competing prohibitions. This includes choosing not to fund certain religious activity where States have strong, establishment-related reasons for not doing so. … The Court today nowhere mentions, and I fear effectively abandons, this longstanding doctrine.”

“We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education,” Justice Breyer wrote. “What happens once ‘may’ becomes ‘must’?”

“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Justice Sonia Sotomayor wrote in a separate dissent. She joined Breyer’s dissent, save for one portion.

Critiquing the majority rulings in both Trinity Lutheran and Espinoza cases, Justice Sotomayor said, “In just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.”

“The Court’s decision to require Maine to fund religious instruction threatens our nation’s commitment to religious freedom and the understanding of church-state separation that protects it,” said Holly Hollman, general counsel and associate executive director of BJC (Baptist Joint Committee for Religious Liberty), in response to the SCOTUS decision.

“A majority of justices on the Supreme Court keep ignoring the distinctive role of religion in law and society, which is best served by separating the institutions of religion and government,” she said.

BJC’s position on the case has been that “states are not required by the U.S. Constitution to sponsor explicitly religious activity.” Hollman and BJC Executive Director Amanda Tyler discussed the case in a December 2021 podcast when the court heard oral arguments.

Because Maine’s program is designed to address access to free education for students in remote areas via non-sectarian private school options, a ruling against Maine would expand “free exercise to a point that directly threatens principles of no establishment,” Hollman wrote prior to the decision.

“The court is forcing taxpayers to fund religious education,” stated Rachel Laser, president and CEO of Americans United for the Separation of Church and State, following the ruling.

“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. Here, the court has violated that founding principle by requiring Maine to tax citizens to fund religious schools,” she said. “Far from honoring religious freedom, this decision tramples the religious freedom of everyone. Worse, the court has opened the door to government-enforced tithing, an invitation religious extremists will not ignore.”

BJC and Americans United both signed on to an amici curiae brief, along with 22 other organizations, that supported Maine’s restriction of public funds to non-sectarian schools.

A statement from Pastors of Texas Children, led by Baptist minister Charles Foster Johnson, said that the decision “undercuts the principle of religious liberty” and that it “chip[s] away at the American doctrine of the separation of church and state.”

“Religious schools neither need nor deserve the help, assistance, or preferential treatment of the State. Its teachings should be sustained only by voluntary investments,” the PTC statement asserted. “To require Maine taxpayers to fund a religion contrary to — or consistent with — their beliefs is a violation of basic human liberty.”

“The First Amendment was meant to balance the establishment clause and free exercise clause. Instead, this ruling creates further strife and tension between taxpayers and people of different religions, which the establishment clause was intended to protect against,” said American Federation of Teachers President Randi Weingarten. “The majority not only attacks public schools and public education but threatens religious institutions and organizations by opening them up to state control and state interference.”

In a series of tweets, the Anti-Defamation League said it was “deeply disturbed” by the ruling, asserting that “this dangerous precedent undermines the core principle of church-state separation. It opens the door to taxpayer-funded schools and programs that deny admission to religious and other minorities and to state-funded religious indoctrination.”

A statement from the U.S. Conference of Catholic Bishops, which also filed an amici curiae brief, said SCOTUS had “rightly ruled” on the case, calling it a “common-sense result” that “affirmed that states cannot exclude religious schools from generally-available public benefits based on their religious affiliation or exercise.”

Nichole Garnett, a professor at Notre Dame Law School, described the ruling as “a victory both for religious liberty and for American schoolchildren,” according to a Catholic News Service report. “The majority makes clear, once again, that, when the government makes a benefit available to private institutions, it must treat religious institutions — including faith-based schools — fairly and equitably.”

Garnett signed on to an amici curiae brief in opposition to Maine’s policy that was filed by Notre Dame Law School’s Religious Liberty Initiative on behalf of the Council for Islamic Schools in North America, Partnership for Inner-City Education, and Union of Orthodox Jewish Congregations of America.

Alliance for Defending Freedom praised the decision in a press release, describing the ruling as a “religious freedom win” in a tweet thread that included a link to the organization’s statement.

“When the government offers parents school choice, it can’t take away choices that are deemed ‘too religious’ or withhold funds from those who choose religious schools when the state offers those funds to everybody else,” said ADF senior counsel and vice president of Appellate Advocacy John Bursch, in the organization’s press release.

ADF – which signed on to an amici curiae brief submitted by the Jewish Coalition of Religious Liberty – describes itself as “the world’s largest legal organization committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life.” The organization’s “About Us” page explains that ADF was formed in 1994 when “35 Christian leaders came together to build a ministry that would defend religious liberty and keep the doors open for the Gospel.”

The full SCOTUS opinions of the majority and minority are available here.

Editor’s note: This article has been updated to correct a misspelling of Justice Sotomayor’s first name.

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