Court rules tuition program cannot exclude religious schools

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The U.S. Supreme Court ruled July 21 a state tuition assistance program in Maine cannot exclude religious schools.

In a 6-3 decision regarding Carson v. Makin, the court ruled Maine’s prohibition of aid to church-run schools violates the Free Exercise Clause of the First Amendment by discriminating against private parochial schools and their students.

The Maine tuition program focuses on rural communities without public secondary schools. The program allows tuition payments to a private school selected by parents provided it is a “nonsectarian” school.



Two families seeking tuition assistance to send their children to Bangor Christian School and Temple Academy sued the commissioner of the Maine Department of Education. They claimed the “nonsectarian” requirement violated their religious freedom rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

‘Neutral benefit program’

Writing for the majority, Supreme Court Chief Justice John Roberts stated: “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

Roberts cited the court’s 2017 ruling in Trinity Lutheran Church of Columbia v. Comer. In that case, the court ruled the Missouri Department of Natural Resources erred in denying the Trinity Lutheran Church Child Learning Center a grant to resurface its playground because the center was church-operated.



In the written court opinion, Roberts also pointed to Espinoza v. Montana Department of Revenue, which focused on a state program that provided tax credits to donors who sponsored scholarships for private school tuition. Again, the court held the state’s exclusion of religious schools violated the First Amendment’s Free Exercise Clause.

A majority of the court ruled “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” of the First Amendment.

“The state pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion,” Roberts wrote.


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Dissenters voice concern about court’s direction

In a dissenting opinion, Justice Stephen Breyer asserted lawmakers in Maine recognized key differences between public education and religious education when they endorsed the state’s “nonsectarian” requirement.

“They did not want Maine taxpayers to finance, through a tuition program designed to ensure the provision of free public education, schools that would use state money for teaching religious practices,” Breyer wrote.

Breyer added his belief the “nonsectarian” requirement “supports, rather than undermines, the religion clauses’ goal of avoiding religious strife.”



In another dissenting opinion, Justice Sonia Sotomayor insisted the court “should not have started down this path five years ago” when it ruled in favor of Trinity Lutheran Church.

“After assuming away an Establishment Clause violation, the court revolutionized Free Exercise doctrine by equating a state’s decision not to fund a religious organization with presumptively unconstitutional discrimination on the basis of religious status,” Sotomayor wrote.

By applying its arguments from its Trinity Lutheran and Epinoza rulings and “ignoring decades of precedent,” 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,” she continued.



Sotomayor called the court’s majority opinion “especially perverse” because it deals with “public education to which all of Maine’s children are entitled under the state constitution.”

In 2017, Sotomayor wrote in her dissenting opinion regarding the Trinity Lutheran case that the court was moving “to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

“Today, the court leads us to a place where separation of church and state becomes a constitutional violation,” she wrote in her latest dissent, adding her “growing concern for where this court will lead us next.”

‘Religious discrimination will not be tolerated’

The Southern Baptist Convention’s Ethics & Religious Liberty Commission filed a brief in September of last year urging the justices to support the parents challenging the “nonsectarian” rule in Maine’s program.

Brent Leatherwood, acting president of the ERLC, tweeted support for the court’s ruling: “State should really quit wasting their time and effort with attempts to undermine religious liberty, especially in this area. … With today’s decision, the Court is continuing to demonstrate just how strong the fundamental right of religious liberty is.”

In a more formal public statement, Leatherwood said: “Maine’s attempt to sidestep the Constitution was halted in its tracks today, and rightly so. The justices’ decision here accurately comports with the fundamental nature of religious liberty in our nation.

“The court rightly decided that parents who choose to participate in a program like the one in Maine cannot have their constitutional rights abridged merely because they choose to send their children to a religious school. Similar attempts to curtail free expression have rightly been labeled ‘odious’ by the court in previous decisions, and Maine’s program can now be added to that infamous list.”

Kelly Shackelford, president/CEO and chief counsel for the First Liberty Institute in Plano, similarly praised the court’s decision.

“We are thrilled that the court affirmed once again that religious discrimination will not be tolerated in this country. Parents in Maine, and all over the country, can now choose the best education for their kids without fearing retribution from the government,” Shackelford said. “This is a great day for religious liberty in America.”

In contrast, the Baptist Joint Committee for Religious Liberty filed a friend-of-the-court brief in support of Maine and the provision that state tuition assistance be limited to “nonsectarian” schools.

‘Threatens our nation’s commitment to religious freedom’

“The court’s decision to require Maine to fund religious instruction threatens our nation’s commitment to religious freedom and the understanding of church-state separation that protects it,” said Holly Hollman, BJC general counsel.

Holly Hollman

“A majority of justices on the Supreme Court keep ignoring the distinctive role of religion in law and society, which is best served by separating the institutions of religion and government. That separation, which Maine sought to protect, is an important part of America’s religious liberty legacy, and it’s a key principle for historic Baptists and others who have long championed religious liberty for all and public education.”

The court’s ruling in Carson v. Makin “follows a recent trend away from treating religious institutions in distinct ways to avoid government involvement in religious matters,” she observed.

However, it “goes a step farther by requiring funding of religious education in Maine’s tuition program,” she added.

“BJC remains committed to our core principles of religious freedom. Forcing taxpayers to fund religious education undermines the secular nature of our government and the freedom of religious institutions to engage in ministry without government interference,” Hollman said.

‘Tramples the religious freedom of everyone’

Rachel Laser, president and CEO of Americans United for Separation of Church and State, asserted the court is “forcing taxpayers to fund religious education.”

“This nation was built on the promise of religious freedom, which has always prevented the state from using its taxing power to force citizens to fund religious worship or education. Here, the court has violated that founding principle by requiring Maine to tax citizens to fund religious schools,” Laser said. “Far from honoring religious freedom, this decision tramples the religious freedom of everyone.”

Charles Foster Johnson

Charles Foster Johnson, executive director of Pastors for Texas Children, called the court’s ruling a “faulty decision” and a “violation of the First Amendment” religious liberty protections. Directing state funds to religious schools is “a dangerous trend,” he added.

“This decision undercuts the principle of religious liberty, which is an eternal and universal moral truth of God. All authentic faith is voluntary and free. God has ordained it to be so. It can never be legitimately advanced or endorsed by human government. The proper function of government is to protect a free expression of religion devoid of any governmental role,” Johnson said.

“This protection of religious freedom is the foundation upon which our nation was founded and continues to be the civic value that holds our diverse population in national union and concord.”

Johnson—a Baptist minister—said Christians who see the court’s ruling on tuition assistance for sectarian schools as a victory for the free exercise of religion should ask themselves how they will feel when a Wiccan school demands tuition aid on the same grounds.

“State tax dollars should go to the public good, and that means neighborhood public schools serving all children,” he said. “Religious schools neither need nor deserve the help, assistance or preferential treatment of the state.”

Furthermore, by accepting tax dollars, a religious school invites government interference, Johnson continued.

“The public dollars channeled from the state treasury to those religious institutions will invariably be followed by the burden of accountability of those public expenditures, opening the Pandora’s Box of governmental intrusion into the private affairs of that religious school,” he said.

“The decision today will inevitably empower voucher proponents everywhere, including Texas, where our citizens have rejected voucher plans for decades. Therefore, we say loud and clear: We pledge again as pastors to prevent any private school voucher proposal from passing the Texas State Legislature. And we call on all Texans of good will to unify around their moral and constitutional duty before God to ‘make suitable provision for public free schools.’”


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