It’s no surprise that the Supreme Court has taken another step to support public funding of religion. It had already been moving that direction with rulings in 2017 and 2020. But today’s decision, in Carson v. Makin, is still a big deal, and it leaves open several questions for the court to address.
The court ruled today that Maine can’t exclude religious schools from a small program that provides tuition vouchers for students in isolated rural areas to attend private secondary schools. Doing so, it said, violates the First Amendments requirement of religious freedom.
“The State pays tuition for certain students at private schools — so long as the schools are not religious,” Chief Justice John Roberts writes for the 6-3 majority. “That is discrimination against religion.”
Roberts quotes the court’s 2020 opinion in Espinoza v Montana, which dealt with a private school tax-credit program. “A state need not subsidize private education,” he writes. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
But as Justice Stephen Breyer writes in a dissent, Maine didn’t choose to fund private schools because it wanted to. The choice was arguably forced on the state by the rural nature and lack of population in parts of Maine served by the voucher program.
Breyer and Justice Sonia Sotomayor, who wrote a separate dissent, take issue with the way the court majority has largely abandoned the First Amendment’s Establishment Clause, which provides for separation of church and state, in favor of the amendment’s Free Exercise Clause.
Breyer quotes Thomas Jefferson, who wrote: “‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’”
Today’s decision would appear to overturn language in 38 state constitutions, including Indiana’s, that prohibits using state funds to support religious institutions. The court seems to be taking the position that, if a state provides a benefit to private parties, it can’t exclude churches and religious schools.
The decision also raises questions that Roberts’ decision doesn’t directly address. For one thing, does it open the door to religious charter schools? The question swings on whether charter schools are public or private. Lower courts have disagreed.
Also, if a state does provide support for private schools, what requirements can it impose? Can it require a standard curriculum that excludes creationism and climate change denial? Can it outlaw discrimination? Or would those requirements run afoul of religious freedom?
Indiana, of course, voluntarily created a voucher program that provides a ton of state funding to private, religious schools, many of which discriminate on the basis of religion, test scores, sexual orientation, gender identity and disability. It started in 2011 and keeps growing. More on that soon.