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Supreme Court rules Maine tuition aid can’t exclude religious schools

‘That is discrimination against religion,’ Chief Justice John G. Roberts Jr. wrote for the 6-3 majority

The Supreme Court building is seen at dusk in November 2021.
The Supreme Court building is seen at dusk in November 2021. (Bill Clark/CQ Roll Call file photo)

The Supreme Court ruled Tuesday that Maine cannot exclude religious schools from a state tuition assistance program, the latest case signaling the conservative court’s shift on religious freedom and separation of church and state.

The 6-3 opinion, written by Chief Justice John G. Roberts Jr., found the program unconstitutional because it provided vouchers that parents could spend at private or public schools but excluded schools with explicitly religious instruction. The Supreme Court found that Maine’s program violated the Free Exercise Clause in the First Amendment because it prohibits the schools from receiving an otherwise available benefit solely because of the schools’ religious nature.

“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.

Parents sending their students to two schools in the state, Bangor Christian Schools and Temple Academy, argued the state program should not prohibit sending their children to an otherwise qualified school based on its religious affiliation.

The state program provides tuition assistance for parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district.

Justice Stephen G. Breyer, in a dissent joined by Justices Sonia Sotomayor and Elena Kagan, wrote that the Maine law embodies “the constitutional need to avoid spending public money to support what is essentially the teaching and practice of religion.”

“That need is reinforced by the fact that we are today a Nation of more than 330 million people who ascribe to over 100 different religions,” Breyer wrote. “In that context, state neutrality with respect to religion is particularly important.”

And Sotomayor, in a separate dissent, highlighted how policies at the two schools at issue in the case deny enrollment to students based on gender identity, sexual orientation and religion.

Sotomayor wrote that while the Supreme Court majority purports to protect against religious discrimination, the decision “requires Maine to fund what many of its citizens believe to be discrimination of other kinds.”

“The upshot is that Maine must choose between giving subsidies to its residents or refraining from financing religious teaching and practices,” Sotomayor wrote.

Sen. Ben Sasse, R-Neb., one of several senators who signed on to an amicus brief arguing in favor of the parents, praised Tuesday’s ruling as “an important victory for religious liberty.”

“Maine has been discriminating against religious parents for four decades, and the Court is right to put an end to it,” Sasse said in a statement.

The case is the latest in a string of cases altering the Supreme Court’s approach to religious freedom and public school funding. In another case in 2019, the court ruled that Montana could not exclude church-based schools from a state scholarship program.

The Biden administration filed a brief in the Maine case that argued that allowing the schools to receive funds that would go to religious education would change the Supreme Court’s approach to First Amendment jurisprudence and have implications for how the federal government handles funding of religious institutions.

Laws funding educational institutions such as Howard University have prohibited the use of the funds for religious purposes, Solicitor General Elizabeth Prelogar argued in the brief.

Forcing Maine to fund the explicitly religious education of the Temple school would change the understanding of law and religious liberty, the government’s brief argued.

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