Supreme Court ruling on Maine religious schools stirs debate over separation of church and state

US Supreme Court.Jose Luis Magana/Associated Press

Some school choice advocates on Tuesday praised a US Supreme Court ruling that found Maine can’t exclude religious schools from a state program offering tuition aid for private education, while activists on the opposing side warned the opinion could erode the separation of church and state enshrined in the Constitution.

Chief Justice John Roberts wrote for a conservative majority in the 6-3 decision that Maine’s program violates the Constitution’s protections for religious freedoms. Justice Sonia Sotomayor, in a stinging dissent, wrote that the majority opinion “leads us to a place where separation of church and state becomes a constitutional violation.”

Not so, according to Michael Bindas, a senior attorney at the Virginia-based Institute for Justice who argued the case before the Supreme Court on behalf of the plaintiffs, who’d sued Maine over the policy.

“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,” Bindas said in a statement released by the institute.

The statement also quoted plaintiff Amy Carson, a Maine resident who filed suit with her husband on behalf of their daughter, who graduated high school last year. Carson said her family’s “overjoyed” by Tuesday’s ruling, adding that they “felt strongly that Maine’s discrimination against religious schools and the families who choose them violated the Constitution and needed to end.”

Maine Attorney General Aaron Frey, whose office had defended the state program in court, said in a separate statement that he was “terribly disappointed” by Tuesday’s ruling. He said the schools the plaintiffs wanted state tuition aid for promote one religion to the exclusion of others and discriminate against LGBTQ people.

“Public education should expose children to a variety of viewpoints, promote tolerance and understanding, and prepare children for life in a diverse society. The education provided by the schools at issue here is inimical to a public education. ... While parents have the right to send their children to such schools, it is disturbing 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 values we hold dear.”

In Maine, the state allows families who live in towns that don’t have public schools to receive public tuition dollars to send their children to the public or private school of their choosing.

Parents who challenged the program argued that the exclusion of religious schools violates their religious rights under the Constitution. Teacher unions and school boards said states can impose limits on public money for private education without running afoul of religious freedoms.

Roberts, writing in Tuesday’s majority opinion, said “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.”

The free exercise clause gives citizens the right to practice any religious belief and engage in religious rituals, while the establishment clause bars the government from making any law respecting an establishment of religion, or favoring one religion over another.

Greg Lipper, a Washington D.C. based attorney specializing in constitutional and criminal law, tweeted Tuesday that the majority opinion gives undue preference to the free exercise clause over the establishment clause.

“This decision more or less holds that the Establishment Clause violates the Free Exercise Clause,” Lipper tweeted, adding that the ruling “gets even more radical when you consider how broadly SCOTUS has exempted religious schools from anti discrimination law.”

This decision more or less holds that the Establishment Clause violates the Free Exercise Clause. https://t.co/SMGKMFrvg9

— Greg Lipper (@theglipper) June 21, 2022

Eli Mystal, a prominent attorney, author, and commentator, tweeted in a similar vein, writing that Tuesday’s majority ruling comes from a group of conservative “Theocrats” on the high court.

“Maine pays for schools for students whose home district has no school,” Mystal wrote. “But won’t pay for religious schools. 6-3 Theocrats says that violates free exercise.”

And we have Carson v. Makin. This would be a bigger deal if the theocrats weren't so obviously in control of the Court.
Maine pays for schools for students whose home district has no school. But won't pay for religious schools.
6-3 Theocrats says that violates free exercise.

— Elie Mystal (@ElieNYC) June 21, 2022

Some faith-based organizations, though, framed Tuesday’s ruling as a victory for religious liberty.

“A state discriminating against religion – as Maine did in its tuition assistance program – is just as unconstitutional as a state promoting one particular religion,” said Nathan Diament, executive director for public policy at the Union of Orthodox Jewish Congregations of America, in a statement. “In today’s ruling, the Supreme Court has advanced religious liberty for all Americans of all faiths.”

However Rebecca Marker, legal director of the Madison, Wisc. based Freedom From Religion Foundation, a group that advocates for church and state separation, said in a statement that the high court’s conservative majority “is engaging in blatant judicial activism, supplanting Maine’s approach to public education with the court’s own views.”

Marker’s words were echoed in the statement by Annie Laurie Gaylor, the foundation’s co-president.

“As [Justice Stephen] Breyer points out in his dissent, the Supreme Court is increasingly ignoring the Establishment Clause of the First Amendment — which was adopted by the Framers to avoid the ‘anguish, hardship and bitter strife’ that results from the union of state and church — and concentrating only on the Free Exercise Clause,” Gaylor said.

Material from the Associated Press was used in this report.