Conservative justices appear open to religious claim in Maine school case

The Supreme Court’s more conservative members on Wednesday seemed receptive to a religious rights challenge to Maine’s policy that makes K-12 schools with religious instruction ineligible for a public tuition aid program.

During two hours of oral argument, the conservative justices posed sharp questions to lawyers for Maine and the federal government who defended the state’s so-called sectarian exclusion.

Some justices pushed back on the claim that the Constitution permits the state’s policy of denying funding to schools with a mandatory religious education component.

“I don’t see how you’re suggesting that the subsidy changes the analysis,” Justice Brett Kavanaugh told the U.S. government’s attorney. “That’s just discrimination on the basis of religion right there at that neighborhood level.”

Maine law gives school-age children the right to free public education. But because many rural districts lack a public high school, a workaround was devised that allows these students to attend nearby qualifying private schools with taxpayers’ assistance.

Under Maine law, however, schools that offer religious instruction are ineligible. This exclusion prompted a legal challenge from two sets of Maine parents who argued that barring families’ preferred schools from the tuition aid program based on religion violates constitutional protections under the First Amendment.

Christopher Taub, who argued the case for Maine, said the state’s tuition policy is compatible with constitutional principles that permit states to decline to fund religious education that instills a particular faith in students.

“The reason that schools that promote a particular faith are not eligible to participate is simple: Maine has determined that as a matter of public policy, public education should be religiously neutral,” he told the justices. “This is entirely consistent with this court’s holdings that public schools must not inculcate religion, and should instead promote tolerance of divergent religious views.”

That argument drew a largely skeptical response from the more conservative members of the 6-3 conservative majority court who strained to reconcile the Maine law with the First Amendment’s religion clauses. 

Justice Samuel Alito asked Taub whether a religiously affiliated school would be disqualified for promoting values in line with its religious outlook like equality, tolerance, charity and human dignity, but without inculcating religious “dogma” in students.   

“That would be very close to a public school,” said Taub, who noted that Maine’s tuition program can support private, religiously affiliated schools so long as they provide roughly the equivalent of a public school education. “Public schools often have a set of values that they want to instill: public service, be kind to others, be generous. I think what the defining feature, or what would make the difference, is whether children are being taught that your religion demands that you do these things.”

Alito interjected as Taub completed his response. 

“Then you really are discriminating on the basis of religious belief,” Alito said. “What I described is, I think, pretty close to Unitarian Universalism, isn’t it? … So that religious community is OK — they can have a school that inculcates students with their beliefs because those are OK religious beliefs — but other religious beliefs, no. Is that what Maine is doing?” 

Picking up on this theme later during arguments, Justice Neil Gorsuch asked whether Maine’s policy might establish a system that favors some religions over others.

“How does that not discriminate against minority religious viewpoints, or ones that are unorthodox, in favor of religions that are more watered down, some might say, or more, more majoritarian, more comfortable with what a bureaucrat in Bangor might say?” he asked.

Some of the court’s more liberal justices appeared to view Maine’s policy as falling within a constitutionally permissible zone between the First Amendment’s Establishment Clause, which prohibits the government from establishing or favoring a religion, and its Free Exercise Clause, which protects religious belief and practice. 

“What we have often talked about in our First Amendment religion cases is this idea of ‘play in the joints,’ that not everybody has to follow the same model and that there is some amount of funding which is neither prohibited by the First Amendment nor commanded by the First Amendment,” Justice Elena Kagan said while questioning Michael Bindas, the lawyer for the Maine parents, about whether Maine’s program is required to subsidize schools with religious instruction.

“And essentially, what Maine is saying here is like, all well and good if a locality or if a state wants to do this, but we weigh the interests differently, and shouldn’t we be allowed to weigh the interests differently?” she continued.

Maine prevailed in the lower courts, prompting the parents’ appeal to the Supreme Court, which is seen as having a generally favorable outlook when it comes to religious freedom claims.

A decision in the case, Carson v. Makin, is expected this summer.

–Updated at 2:01 p.m.