A Maine law that excludes families from a student aid program if they choose to send their children to religious schools is flatly unconstitutional and should be struck down, a seemingly sympathetic Supreme Court heard Dec. 8.
The program at issue provides tuition assistance for students who don’t have a local public school so they can attend private institutions, as long as the funding isn’t used for religious education.
The petitioners are parents David and Amy Carson, and Troy and Angela Nelson. Respondent A. Pender Makin is being sued in her official capacity as commissioner of the Maine Department of Education. The Biden administration supports Maine’s position. The hearing went on for 116 minutes, well over the allotted 70 minutes.
But the parents say the court didn’t resolve the question of whether a state may exclude families and schools based on the religious use to which a student’s aid might be put at a school.
On the other side, some commentators say a win by the parents in this case would undermine public education across the country and empower religious conservatives.
The parents’ attorney, Michael Bindas of the Institute for Justice, told the Supreme Court during oral arguments that Maine’s law can’t pass constitutional muster.
“Maine’s sectarian exclusion discriminates based on religion,” he said. “It should be subjected to strict scrutiny and held unconstitutional unless Maine can show that it is necessary to achieve a compelling government interest.
“Maine cannot make such a showing, and the 1st Circuit never held that it could. Instead, the 1st Circuit held that there are two kinds of religious discrimination—the bad kind and the good kind. The 1st Circuit recognized that Maine cannot discriminate against students or schools because they are religious, but it held the state is perfectly free to discriminate against students or schools because they do religious things, such as teach or receive instruction in religion.”
“The 1st Circuit was wrong. Religious discrimination is religious discrimination.”
Justice Elena Kagan asked Bindas why the state has “to subsidize the exercise of a right.”
Bindas said the state wasn’t doing so.
“It is conditioning the availability of an otherwise available public benefit on the surrender of a constitutional right,” he said. “The government cannot compel a citizen to choose between exercise of a right protected by the First Amendment and participation in an otherwise available public program.”
After Maine Chief Deputy Attorney General Christopher Taub argued that the parents lack legal standing, Chief Justice John Roberts confronted the lawyer.
“You’re discriminating among religions based on their belief, right?” Roberts said.
Taub replied: “No, I would not say that. Religions can have whatever belief they want, but if they want to take part in Maine’s tuition program, the education service they have to provide has to be the service that Maine is purchasing.”
Roberts said: “One religion says that’s what they do with education, and the other religion says, no, we use it to propagate the faith. So it is the beliefs of the two religions that determines whether or not their schools are going to get the funds or not. And ... we have said that that is the most basic violation of ... the First Amendment religion clauses, for the government to draw distinctions between religions based on their doctrine.”
Taub disagreed. “We’re not drawing those distinctions based on doctrine. We are drawing those distinctions based ... on what the school is going to promote.”
The state should not be spending money to promote religious beliefs, the lawyer said.
The parents are “not being discriminated against—they simply are not being offered a benefit that no family in Maine is entitled to,” Taub said.
U.S. Deputy Solicitor General Malcolm Stewart said the case isn’t about discrimination.
“This is a case about what the government has to subsidize ... not a case about the government either imposing affirmative restraints on religion or denying generally applicable benefits to persons based on religious exercise outside the program,” he said.
Justice Neil Gorsuch asked Stewart if he agreed that the Supreme Court has “made clear that ... you don’t have to choose between receiving a public benefit and your faith, right?”
“That’s correct,” Stewart said. “The question is not whether you can be denied the unrelated benefit based on your faith or based on your religious practice. It’s whether the government has to subsidize the religious practice itself.”
Gorsuch replied, “Fair enough, but once it creates the program ... to suggest that you don’t have to choose between participation in the program and your faith because you can send your children to Sunday school or to a Bible study program at night seems to suggest favoritism toward religions.”
Stewart said: “I think the state is behaving neutrally in the sense that it says we will fund secular education. We will not fund religious instruction or an inculcation.”
Justice Brett Kavanaugh told Stewart: “I think the lesson of some of the cases is discriminating against all religions versus secular is itself a kind of discrimination that the court has said is odious to the Constitution, at least in certain contexts.”
