On June 21, 2022, the United States Supreme Court released its decision in the case of Carson v. Makin, declaring unconstitutional the 1981 “sectarian exclusion” to Maine’s Town Tuitioning program. Authored by Chief Justice John Roberts, the opinion resoundingly denounces the exclusion as a violation of Mainers’ First Amendment rights and incompatible with the Constitution’s Free Exercise Clause.
In the words of the Chief Justice:
“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.”
Town Tuitioning, a program launched nearly 150 years ago in 1873, makes it possible for Maine children residing in towns without a public school to enroll in another district’s public school or a private school of their family’s choosing. In 1981, the Maine State Legislature passed legislation which dictated that “a private school may be approved for the receipt of public funds for tuition purposes only if it…is a nonsectarian school in accordance with the First Amendment of the United States Constitution.”
Subsequently to the passage of this law, however, the Supreme Court found, in the case of Zelman v. Simmons-Harris (2002), that it is not a violation of the First Amendment for a state to allow parents to utilize tuition vouchers to cover the cost of attendance at a private religious school. Although the State Legislature considered a proposal to repeal the sectarian exclusion following this decision, it was ultimately rejected.
While states do have the right to adopt an anti-establishment interest that is stronger than that which is required by the U.S. Constitution, Chief Justice Roberts states in the decision that “a State’s antiestablishment interest” cannot be used to justify provisions that are an “infringement of free exercise” because they “exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”
Chief Justice Roberts explains in the opinion that the First Circuit Court “defined the benefit at issue as the ‘rough equivalent of [a Maine] public school education.’” The Supreme Court directly challenged this understanding, stating emphatically that “the statute does not say anything like that.” Rather, it is the position of the Court that “the benefit is tuition at a public or private school, selected by the parent, with no suggestion that the ‘private school’ must somehow provide a ‘public’ education.”
Immediately following the release of the opinion, Maine’s Attorney General Aaron Frey put out a statement doubling down on the State’s position regarding the sectarian exclusion. In the statement, the Attorney General positions himself in direct opposition to the Chief Justice of the Supreme Court, stating:
“Public funds cannot be used to attend a private school that promotes religion because such schools, by definition, do not provide the equivalent of a public education.”
Furthermore, the Attorney General promises in his statement to “explore with Governor Mills’ administration and members of the Legislature” ways to amend the statue in order “to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.”
Interestingly, however, Attorney General Frey closes by noting that, despite the Court’s decision, any school with discriminatory practices would already be ineligible for public funding on account of the fact that “educational facilities that accept public funds must comply with anti-discrimination provisions of the Maine Human Rights Act.”
Given that the Attorney General himself acknowledges that there are already laws on the books to prevent actively discriminatory schools from receiving public funds, it calls into question what exactly he hopes to accomplish via “statutory amendments.”
Chief Justice Roberts stated in the Carson opinion, referencing the Court’s position in the case of Espinoza v. Montana, that “the presence or absence of magic words” should not be able to render the Court’s decisions “essentially meaningless.” But in light of the anti-discrimination laws already in effect, it appears that the State may be trying to push the envelope when it comes to its consideration of potential “statutory amendments” designed “to address the Court’s decision.”
If Maine delays in repealing the sectarian exclusion, it will be actively violating Maine parents’ First Amendment right to freely exercise their religion. The state legislature should act as quickly as possible to repeal the sectarian exclusion and the state Department of Education should update the list of schools eligible to receive Town Tuitioning funds to include private religious schools to be in compliance with the Supreme Court’s ruling.
The Supreme Court has decided that parents who wish to send their children to religious schools cannot be excluded from the publicly available benefit of Town Tuitioning. Therefore, the State should act now to ensure that all options are clearly on the table for Maine parents who are trying to make decisions about where to send their children to school this fall.