Supreme Court strikes down sectarian exclusion in Maine’s town tuitioning program


On June 21,  the United States Supreme Court ruled Maine’s prohibition on sectarian schools from receiving public funds through the state’s town tuitioning program violates the First Amendment’s free exercise clause. 

Writing the 6-3 majority opinion for the Supreme Court in Carson v. Makin, Chief Justice John Roberts reversed a First Circuit Court of Appeals decision that ruled the exclusion was constitutional and remanded the case “for further proceedings consistent with this opinion.”

“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.”

Roberts’ opinion was joined by Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Associate Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor filed dissenting opinions.

At issue was a Maine statute that allows state funds to be sent to private schools if children live in a town that does not have a public school system for their grade level, and if their town does not have an agreement to send them to a neighboring school district. That statute excludes sectarian schools from participating in the program, which it states is in keeping with the First Amendment.

While the First Circuit found that the sectarian exclusion was constitutional because it funded the “rough equivalent of the public school education that Maine may permissibly require to be secular,” the Supreme Court disagreed that the statutory exclusion of sectarian schools in the town tuitioning program suggests that a private school must provide a public education.

“The key manner in which participating private schools are required to resemble Maine public schools, however, is that they must be secular. Maine may provide a strictly secular education in its public schools. But BCS and Temple Academy—like numerous other recipients of Maine tuition assistance payments—are not public schools. Maine has chosen to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise,” says the case’s syllabus.

Breyer, who wrote the dissenting opinion, which was joined in full by Kagan and in part by Sotomayor, who also wrote a dissenting opinion, argued the majority’s opinion relied too heavily on the First Amendment’s establishment clause and ignored the free exercise clause.

Breyer wrote that the interaction between the establishment clause, which prohibits government from making laws establishing religion, and the free exercise clause, which prohibits government from making laws that prohibit the free exercise of religion, gives states “some degree of legislative leeway” and allows states to further “antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion.”

“Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children the religiously neutral education required in public school systems. And that, in significant part, reflects the State’s antiestablishment interests in avoiding spending public money to support what is essentially religious activity. The Religion Clauses give Maine the ability, and flexibility, to make this choice,” Breyer wrote.

Breyer also argued the sectarian exclusion supports the goals of the clauses in the First Amendment that touch on religion, which seeks to avoid religious strife.

In her dissent, Sotomayor said the court’s majority ruling “continues to dismantle the wall of separation between church and state that the Framers fought to build.” Sotomayor disagreed with the rulings in previous cases touching on public benefits being denied to religious schools, including Trinity Lutheran Church of Columbia, Inc. v. Comer.

“From a practical perspective, today’s decision directs the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction,” wrote Sotomayor.

She continued, writing the ruling requires “Maine to fund what many of its citizens believe to be discrimination of other kinds,” referencing policies at Temple Academy and Bangor Christian Schools, two schools involved n the case, have of denying enrollment to students on the basis of sexual orientation and gender identity. 

“Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent,” Sotomayor concluded.

Michael Bindas, a senior attorney at the Institute for Justice who argued the case in front of the Supreme Court, said the decision makes clear that “the government may not bar parents from selecting religious schools within educational choice programs.”

“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.”

Maine Attorney General Aaron Frey expressed his disappointment with the decision late Tuesday.

“While parents have the right to send their children to such schools, it is distrubing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with the values we hold dear,” Frey said, adding that he “intends to explore with Governor Mills’ administration and members of the Legislature statutory amendments to address the court’s decision.”

Former Maine governor Paul LePage, who is running against Gov. Janet Mills this November, also issued a statement in response to the high court’s decision.

“I applaud the Supreme Court’s decision today striking down Maine’s rules excluding religious schools from school choice voucher programs. It is time to let the parents decide their child’s future, not educational bureaucrats. As I’ve said before, money should follow the student and we need to let parents decide. We must have the best opportunities for learning for all Maine children, whether they be public schools, charter schools, magnet schools, parochial schools, virtual schools, or home schooling.”


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