Justices Say Religious Schools Can't Be Excluded From Maine Tuition Aid Program

A 1982 Maine law excluding religious schools from a rural-area, public school tuition payment program is unconstitutional, a divided U.S. Supreme Court ruled on Tuesday.
In an opinion by Chief Justice John Roberts Jr., the court’s conservative majority continued its expansive view of the demands of the First Amendment’s free exercise clause on government funding programs. Five of the six conservative justices attended religious schools.

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” Roberts wrote. “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.”

Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, in a dissent wrote: “Maine wishes to provide children within the state with a secular, public education. This wish embodies, in significant part, 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. In that context, state neutrality with respect to religion is particularly important.”

Because of its rural nature, some areas of Maine are unable to provide K-12 public schools. In order to fill the gaps, the state offers two options to local school administrative units: Contract with another public or approved private school for some or all of its students or pay tuition for their students at another public school or “the approved private school of the parent’s choice at which the student is accepted.”

The tuition payment program only includes nonsectarian schools—schools that do not inculcate students with a particular religious faith and that will provide a roughly equivalent secular public education.

The Institute for Justice challenged the Maine law on behalf of two families who wanted to send their children to religious schools. Their challenge followed the justices’ 2017 decision in Trinity Lutheran v. Comer in which the court held that the free exercise clause was violated by Missouri’s refusal to allow a church school to participate in its grant program for resurfacing playgrounds.

In the Maine lawsuit, a panel of the U.S. Court of Appeals for the First Circuit, which included retired Justice David Souter, upheld the state law because of the justices’ distinction in Trinity Lutheran between religious status and religious use. In Trinity Lutheran, exclusion of the church was discrimination based on religious status. The First Circuit said, and Maine had argued, that religious schools could participate in the tuition program as long as they provided a non-sectarian, public school education. They said that was exclusion based on religious use, not status.

In a 2019 decision, Espinoza v. Montana Dept. of Revenue, the court again found a First Amendment violation based on religious status discrimination. Justice Neil Gorsuch, in a concurring decision, said he found it difficult to make a distinction between religious status and religious use.

In two-hour arguments on Dec. 8 in Carson v. Makin, the two families, represented by Michael Bindas of the Institute for Justice, argued that Maine’s program discriminated against religion in violation of the First Amendment establishment and free exercise clauses, as well as the 14th Amendment.

Bindas argued that religious schools were allowed to participate for more than a century until 1980 when Maine reversed course based on an erroneous reading of the establishment clause.  “Here you are forced to make a choice: You can get the benefit (tuition payments) or you can exercise your free exercise right. You can’t do both,” he said.
Maine Chief Deputy Attorney General Christopher Taub argued that a free public education was the benefit at issue. “The reason that schools that promote a particular faith are not eligible to participate is simple,” he said. “Maine has determined that, as a matter of public policy, public education should be religiously neutral. 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.”
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Supporting Maine, Deputy U.S. Solicitor General Malcolm Stewart argued that the government has far greater latitude when it simply declines to fund particular speech than when it imposes barriers to that speech or exercise.