In a major decision for religious freedom and school choice, the Supreme Court on Tuesday struck down a Maine law that barred taxpayer tuition assistance funds from families choosing religious schools.

The Court ruled, 6-3, in Carson v. Makin, that the Maine law governing its tuition program’s exclusion of religious schools, while accepting other private schools, is a violation of the Free Exercise Clause of the First Amendment and is, therefore, unconstitutional.

Chief Justice John Roberts wrote the majority opinion, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joining.

Justice Stephen Breyer’s dissent was joined by Justice Elena Kagan and, in part, by Justice Sonia Sotomayor, who also filed a separate dissent.

In the Court’s opinion, Roberts asserted “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”

“[T]here is nothing neutral about Maine’s program,” the chief justice stated, however:

The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion. A State’s anti-establishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.

“Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools,” Roberts continued, concluding:

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.

In his dissent, Breyer wrote the Free Exercise Clause “does not require Maine to fund, through its tuition program, schools that will use public money to promote religion.”

“And considering the Establishment Clause concerns underlying the program, Maine’s decision not to fund such schools falls squarely within the play in the joints between those two clauses,” he said.

“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Sotomayor wrote in her dissent. “[I]n 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 case involved three families from different areas of the state of Maine who sued because they were deemed ineligible to participate in the tuition assistance program because they chose religious schools for their children.

As explained in the case summary, since Maine is a largely rural state, not all school districts operate their own high schools. Until 1982, the state had allowed taxpayer funding for students to attend another public or private school of their choice, but, in that year, changed the criteria to exclude religious schools.

Institute for Justice Senior Attorney Michael Bindas, who argued the case in front of the Court, said in a statement:

Today’s decision makes clear, once and for all, that the government may not bar parents from selecting religious schools within educational choice programs, whether because of their religious affiliation or the religious instruction they provide. Parents have a constitutional right to choose such schools for their children, and the Court today held that a state cannot deny them that choice in programs that allow for other private options.

Maureen Ferguson and Ashley McGuire, two senior fellows from The Catholic Association, reacted to the Supreme Court’s decision.

“Today’s decision is a momentous victory for religious freedom and parents’ right to educate their children as they see fit,” Ferguson said. “As our nation’s public schools have moved away from the fundamentals of reading, writing, and arithmetic towards sheer political indoctrination, more and more parents are seeking to opt out. Religious schools should be among the options available to them.”

McGuire observed that “religious families, and even families that aren’t religious but see the value in faith-based schools, should not be cut out from programs that help parents make the best educational choice for their kids.”

“Maine’s law and others like it especially hurt low-income children who suffer the most in failed schools,” she added.

School choice advocates Corey DeAngelis and School Choice Boyz tweeted their reaction to the Court’s decision:

“The Supreme Court’s decision in Carson v. Makin is a tremendous victory for school choice across the country,” said Club for Growth President David McIntosh. “This ruling is part of a growing trend towards giving parents choice in schools and away from listening to failed education bureaucrats focused on preserving their monopoly. Parents should not be denied their education tax dollars because of their religion.”

New England nonprofit PioneerLegal applauded the Court’s decision, in which the chief justice cited the Court’s previous ruling in Espinoza v. Montana Department of Revenue.

“While the Maine law allowed parents to access the public or private education that best suits their children, its exclusion of religious schools clearly could not pass constitutional muster after Espinoza,” PioneerLegal President Frank J. Bailey said in a statement.

Roberts, Bailey also noted, “found that the ‘unremarkable’ principles in Espinoza suffice to resolve this case and that for the Court to “accept Maine’s argument, our decision in Espinoza would be rendered meaningless.”

Jamie Gass, Pioneer Institute’s director of school reform also celebrated that Maine’s original law “will once again reflect the intent of those who enacted it, as it did for over a century.”

“This ruling will restore educational opportunity to families across rural Maine,” he said.

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Susan Berry, PhD, is national education editor at The Star News Network. Email tips to [email protected].
Photo “Supreme Court Ruling” by Institute for Justice. 

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