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Ruling in Maine school case highlights interplay of religion clauses in the First Amendment

Written by William C. Duncan

June 24, 2022

Although abortion and gun restrictions are getting the most attention in media coverage of the Supreme Court, the court has ruled on a number of other important issues, including religious freedom. On Tuesday morning, the court issued its opinion in one of these cases, Carson v. Makin, involving school funding.

This case involved a Maine program to provide grants to “parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district.” So, parents in these districts can seek a tuition grant and designate a school to which it will be sent. The two sets of parents involved in this case each wanted to designate a private school affiliated with a church, but the state would not allow this because, starting in 1981, the state would not allow assistance to parents sending a child to a “sectarian” school.

Chief Justice John Roberts wrote the majority opinion for the court.

To set the stage for the decision, Roberts explained that “we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

Given this, the resolution in the Maine case was forthright because of recent decisions the court made in similar disputes. Most importantly, in 2020, the court had decided a similar case, Espinoza v. Montana Department of Revenue, which struck down a Montana rule that gave tax credits to donors who have assistance for private school tuition but only if the student did not attend a religious school. This, the court ruled, discriminated against religious practice and thus violated the First Amendment’s free exercise clause.

The Carson majority found that “[w]hile the wording of the Montana and Maine provisions is different, their effect is the same: to ‘disqualify some private schools’ from funding ‘solely because they are religious.’”

Pointing to another recent case, Trinity Lutheran v. Comer, where the court had struck down a Missouri policy that excluded religious schools from a grant program for playground safety, the court said the parents in Maine “are disqualified from this generally available benefit [the school funding] ‘solely because of their religious character,’” which “‘effectively penalizes the free exercise’ of religion.”

The state had argued that prior Supreme Court decisions only applied where discrimination against religious schools was based on the “status” of the school, while Maine’s law was different because the state’s differentiation of school was based on the “use” of the funds for religious purposes.

The court rejected this approach, explaining that enforcing a prohibition on religious uses would require “scrutinizing whether and how a religious school pursues its educational mission” which would “raise serious concerns about state entanglement with religion and denominational favoritism” (which would infringe the Equal Protection clause). Thus, “the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.”

The court concluded: “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.”

Justice Stephen Breyer dissented, joined by Justices Elena Kagan and, in part, Sonia Sotomayor. Breyer’s dissent accused the majority of stressing the policy of protecting free exercise of religion to the exclusion of Maine’s right to promote its view of the appropriate separation of church and state.

Sotomayor wrote a separate dissent arguing that, by the court’s decision, states would be “required to fund religious exercise” so that if the state “values its historic antiestablishment interests more than this Court does [it] will have to curtail the support it offers to its citizens.”

This case raises important questions about the interplay of the two religion clauses in the First Amendment. The dissenting opinions are concerned that the court’s effort to prevent discrimination that would violate the Free Exercise Clause led them to give short shrift to the Establishment Clause. In other words, they believe the majority has allowed state endorsement of religion.

The justices in the majority, of course, see the issue differently. Specifically, they believe that the two clauses can support one another. To the majority, ending differential treatment of religious schools and people of faith does not require endorsing religion, only treating religious practice like other endeavors. In fact, the majority believed that if the government is allowed to micromanage the use of public funds to ensure no religious entity is indirectly benefited by those funds, that would also violate the Establishment Clause.

Since states sometimes are concerned that acting too favorably toward religious practice might violate the Establishment Clause, the court’s clarification is helpful going forward.

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