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The Supreme Court weighs Maine’s ban on state funds for religious schools. The outcome could have national implications

Light from the morning sun illuminates the Supreme Court in Washington, Friday, Dec. 3, 2021. The Supreme Court is hearing arguments in a challenge from parents in Maine who want to use a state tuition program to send their children to religious schools.
J. Scott Applewhite
Light from the morning sun illuminates the Supreme Court in Washington, Friday, Dec. 3, 2021. The Supreme Court is hearing arguments in a challenge from parents in Maine who want to use a state tuition program to send their children to religious schools.

The U.S. Supreme Court heard arguments Wednesday in a case out of Maine that is being watched across the nation, and the court could help shape how public funding can be used for religious education.

At the center of the case is Maine's "town tuitioning" program, for students in communities that don't have their own high school. Under the program, a municipality pays state tuition dollars for students to attend their choice of public or private school. And under a 1980 state law, that money must go to schools providing a "nonsectarian" education. The provision has repeatedly been challenged but has so far been upheld.

That could change after the latest challenge, which was heard by the U.S. Supreme Court on Wednesday morning. The case was brought by two Maine families. Amy Carson of Glenburn has argued that it's unconstitutional for the state to send tuition payments to other schools — but not to Bangor Christian School, where her daughter attended.

"It's the teaching atmosphere, and the small class size, that Olivia has really benefited from going there," she said on Wednesday. "Dave and I went there, to school. Our siblings went there. It was the best fit for her."

On behalf of Carson and other parents, Attorney Michael Bindas, of the Institute for Justice, told the court on Wednesday that by excluding schools on the basis of religious beliefs, the state is violating the First Amendment and denying parents a public benefit.

"Philosophy class, apparently, you can teach Aquinas and Augustine," Bindas said. "But if you say that Augustine and Aquinas were right, then apparently you're out. Again, based on the decision of a bureaucrat in Augusta, about whether the way the material is being presented is through the lens of faith."

Maine Chief Deputy Attorney General Christopher Taub argued that the state could allow certain religious schools to receive money from the state's town tuitioning program -- but the school would need to offer a "sectarian education" that's "religiously neutral". That means not pushing religious views on students -- such as by mandating chapel services or advocating certain beliefs in class.

"What we would consider is an education that doesn't promote one particular set of religious beliefs, at the exclusion of others. So a school that might teach about different religions, but doesn't instruct students that they are to follow any particular religions," Taub said.

In its court briefings, the state lists several ways that religious beliefs are pervasive at the two schools involved the case, Temple Academy and Bangor Christian Schools.

The state says at Bangor Christian, religious instruction is “completely intertwined and there is no way for a student to succeed if he or she is resistant to the sectarian instruction.” It also notes employees must be "'Born Again' Christians," and a student "who is homosexual or identifies as a gender other than his or her original birth certificate" couldn't sign a code of conduct and wouldn't be admitted to the school. The state's restriction was supported by the U.S. Department of Justice, which also defended the Maine program in court.

Yet members of the court's conservative majority repeatedly questioned the state's reasoning. Justice Brett Kavanaugh asked hypothetically whether it would be unconstitutional to broadly deny funding to all religious education, just as it would be if the state funded a Protestant school but excluded a Catholic or Jewish one.

"That our case law suggests, that discriminating against all religions, as compared to secular — comparable secular — is discriminatory. Just as it is discriminatory to, say, exclude the Catholic and Jewish, and include the Protestant," Kavanaugh asked. "So it's not exclusion of religious people, and religious institutions, from public benefits, solely because they're religious, is itself discriminatory. So we've said that, Trinity Lutheran said odious to our constitution. How do you deal with that?"

The state also argued that the plaintiffs don't have standing in the case, as it's unclear whether the schools would even accept public funding if it was available. In its court filings, the state says that's because, if they received public money, the schools would likely need to significantly change their operations and could be required to hire teachers who are gay.

"Under well-established principles, the petitioners do have standing, because even if they were to prevail, they would receive no redress for their alleged injury," Taub said.

And while previous challenges to Maine's law have failed in the past, advocates are hoping that a win this time could make it easier for states and lawmakers across the country to expand public funding for religious education in the years ahead.