The Supreme Court says Maine cannot deny tuition aid to religious schools

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The Supreme Court on Tuesday overturned a Maine enrollment program that did not allow public funds to go to religious schools, the court’s most recent ruling raising concerns about discrimination against religion over constitutional concerns about separation. the church and the state.

Voting was 6-3, with Court President John G. Roberts Jr. writing for the majority and the three liberals of the dissenting court.

The case involves an unusual program in a small state that only affects a few thousand students. But it could have far greater implications as the more conservative court systematically adjusts the line between the constitutional protection of the religious exercise and its prohibition of government endorsement of religion.

Under the Maine program, jurisdictions in rural areas that are too sparsely populated to support their own high schools may arrange for nearby schools to teach their children of school age, or the state will pay tuition to parents to send their children. children in private schools. But these schools must be non-sectarian, meaning they cannot promote a system of faith or beliefs or teach “through the lens of that faith,” in the words of the state education department.

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Roberts said this approach could not survive the Constitution’s guarantee of the free exercise of religion.

“There’s nothing neutral about the Maine program,” he wrote. “The state pays tuition to certain students in private schools, as long as the schools are not religious. This is discrimination against religion.”

Judge Sonia Sotomayor, one of the dissidents, replied: “This Court continues to dismantle the separation wall between the church and the state that the Framers fought to build.”

Those on opposite sides of the division only agreed on the importance of the outcome.

“Today’s decision makes it clear, once and for all, that the government cannot ban parents from selecting religious schools from educational choice programs, either because of their religious affiliation or because of the religious instruction they provide.” , said Michael Bindas, senior lawyer at the Institute of Justice. argued the case in the Supreme Court for two families, it said in a statement. “Parents have the constitutional right to choose these schools for their children, and the Court today has held that a state cannot deny them that choice in programs that allow for other private options.”

Rachel Laser, president and CEO of Americans United for Separation of Church and State, said in a statement that “the ultra-conservative majority of the U.S. Supreme Court continues to redefine the constitutional promise of religious freedom for all as a religious privilege for to a select few “.

“The court is forcing taxpayers to fund religious education,” Laser said, comparing it to a form of “government-forced tithe.”

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The decision was not unexpected, but it is the latest in a series of victories for religious interests at Roberts’ court. Precisely this time, the court has ruled that an inmate sentenced to death must have access to a spiritual counselor at the time of execution, and that Boston is not free to reject a Christian group’s request to wave. his flag in the town hall for fear of doing so. it seems to be an endorsement of religion, if other groups receive the privilege.

He will soon rule on a public high school football coach’s insistence that he be allowed to offer a prayer of gratitude in midfield after a game.

on Tuesday The decision was the latest example of how the head of justice — who, in his opinion, is joined by his fellow Conservative judges Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — prefers to move the law gradually in a conservative direction.

In 2017, he wrote the opinion that a state could not exclude a church from a Missouri program that supported playground safety measures. This decision was limited enough to gain the support of Liberal Judges Stephen G. Breyer and Elena Kagan. In a footnote, he said the ruling only addressed “express discrimination based on religious identity regarding the recovery of the courtyard” and not “religious uses of funding.”

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In 2020, Roberts built on the decision. He then wrote to most of the court that a Montana program that provided tax credits to donors sponsoring scholarships for private school enrollment should also be open to private religious schools.

“A state should not subsidize private education,” he wrote. “But once a state decides to do so, it cannot disqualify some private schools just because they are religious.”

Roberts wrote in Tuesday’s ruling: “Maine’s decision to continue to exclude religious schools from its enrollment program … promotes a stricter separation of church and state from what the Constitution requires Federal “.

He distinguished Maine’s case from the court’s historic 2004 decision Locke vs. Davey that the state of Washington could restrict publicly funded scholarships for those studying to become clergy.

Locke it cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the state to exclude religious people from the enjoyment of public benefits on the basis of their intended religious use of the benefits, “Roberts wrote Tuesday.

The court’s three Liberals – Breyer, Kagan and Sotomayor – said the court had gone too far.

Sotomayor pointed out the trajectory. “What a difference five years ago,” he wrote, “In 2017, I was afraid the Court would be the leader[ing] we … to a place where the separation of church and state is a constitutional slogan, not a constitutional commitment. “Today, the Court takes us to a place where the separation of church and state is it turns out to be a constitutional violation … With growing concern about where this Court will lead us, I respectfully disagree. “

Breyer, in a separate dissent joined by Sotomayor and Kagan, criticized the majority of the court for not respecting his long-established assertion that there must be some “game in the joints” for the governments trying to balance religious protection with avoiding the mess.

Breyer acknowledged that the court has in the past agreed that states can offer assistance to private religious schools. “But the key is May“He wrote.” We have never before celebrated what the Court considers today to be a state. must (no May) use state funds to pay for religious education as part of an enrollment program designed to ensure the provision of free public education throughout the state.

The case involved two families living in a rural part of Maine that did not offer public high schools. David and Amy Carson wanted state tuition payments to continue sending their daughter to Bangor Christian Schools, and Troy and Angela Nelson, who wanted to send their daughter to Temple Academy.

Both schools offer religious instruction. In addition, Breyer said, “students are denied enrollment based on gender, gender identity, sexual orientation, and religion, and both schools require their teachers to be born-again Christians.”

A U.S. Circuit Court of Appeals group for the 1st Circuit, which included retired Supreme Court Judge David Souter, said Maine had the right not to spend public funds on schools with a religious mission. He made a distinction between denial of funds in schools for religious affiliation and religious use, the issue marked in the courtyard dispute.

Breyer said most seemed to think he had found a loophole.

“In the opinion of the majority, the fact that individuals, not Maine itself, choose to spend state money on religious education saves the Maine program from the condemnation of the establishment clause,” he wrote. . “It simply came to our notice then permits Maine will allocate funds to religious schools. It doesn’t require Maine to spend your money this way. “

And he said the court’s decision would force Maine officials to enact a program that “creates similar potential for religious struggles than that raised for the promotion of religion in public schools.”

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It may seem that the state favors one religion over another, or religion over non-religion, Breyer wrote. Some members of minority religions too young to form their own schools will feel cheated, he said. And those living in districts large enough to have high schools might object that only those living in certain rural areas will receive state aid to send their children to religious schools.

Roberts dismissed most of these concerns. The program only works in places where school districts have not hired a public school to provide services. If Maine does not want tuition payments to be in private schools, “it retains a number of options: it could expand the reach of its public school system, increase transportation availability, offer some combination of tutoring, distance learning, and partial assistance., or even operate their own boarding schools “.

The court’s decision reflects a determined effort by supporters of religious schools.

Notre Dame law professor Nicole Stelle Garnett filed a lawsuit against the Maine program 25 years ago. He described Tuesday’s decision as “a victory for both religious freedom and American schoolchildren.”

The ruling “removes a major obstacle to the expansion of parental choice in the United States by clarifying that when states adopt election programs, they must allow parents to choose religious schools for their children.” said Garnett in a statement.

The case is Carson v. Makin.

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