The case that could breach the wall between church and state

So much of Amy Carson’s life in rural Maine has centered around the small Evangelical school she attended nearly 30 years ago. 

She met her husband, David, there when she was in eighth grade, and both of them had siblings there as well. Some family members used to teach at the conservative Christian school, and their daughter Olivia, a recent graduate, attended from kindergarten through high school.

“It’s a small school, it’s college prep education, it’s close-knit, so everybody knows everybody,” says Ms. Carson, who lives with her family in Glenburn, Maine, a town of about 4,500 residents in a district that doesn’t have a public high school. She says it’s always been important for her family to be part of a community that instills the beliefs and biblical worldview they share at home.

Like the Carsons, the families of nearly 5,000 of Maine’s 180,000 students live in school districts in which the state does not operate a public secondary school. In order to provide these students with a free public education, as the state constitution requires, Maine offers families a taxpayer-funded tuition assistance program, which allows them to send their children to a public school outside their district or an approved private school.

Olivia’s parents could have used the assistance to send her to one of eight high schools, three of which were private, Ms. Carson recalls. But their alma mater, Bangor Christian Schools, does not qualify for the tuition assistance program, since the state excludes “sectarian” schools that inculcate students with a particular faith tradition.

On Wednesday, the Supreme Court will hear oral arguments in their namesake case, Carson v. Makin, in which Ms. Carson and her husband joined other Maine families to sue the state’s Department of Education. They argue that by excluding religious schools like Bangor, the state of Maine violated the United States Constitution, unfairly discriminating against religious parents like them. 

The case is part of what has been a series of Supreme Court decisions over the past few decades that have, in general, permitted more and more public funds to flow to religious schools via voucher programs or even some forms of direct aid to religious institutions.

“The really big-picture view is that there has been this evolution ... from the idea that the religion clauses, and particularly the establishment clause of the First Amendment, prevented government from giving direct financial assistance to sectarian religious entities,” says Jessie Hill, professor of law at Case Western Reserve University in Cleveland. 

“That was kind of a bedrock principle before, but it has slowly evolved toward an idea that not only is it permissible for direct financial aid to flow to these institutions, but it might even be required in some circumstances,” Professor Hill says.

Behind these cases, however, lurks a larger question about the nature of American pluralism in the modern era. For those who maintain traditional religious views of marriage and human sexuality, they believe their sincerely held religious beliefs should continue to be protected from certain nondiscrimination laws in order for them to express their faith freely. 

At the same time, many religious institutions and people of faith have battled to be treated like any other group, able to participate fully in public benefit programs – like Maine’s tuition assistance program.

“At some level pluralism demands that we tolerate views that we don’t like. A lot of religions have views that I disagree with, and I’m able, I hope, to accept that,” says Nicole Stelle Garnett, professor of law at the University of Notre Dame in Indiana. “But should these religious schools, or religious entities more broadly, be permitted to hold views that are not popular? I’m a Catholic, so I’m sensitive to this, because certainly my church has long held views that were considered antithetical to American democracy.”

Indeed, the origins of so-called Blaine Amendments in many state constitutions were rooted in anti-Catholic bigotry, scholars point out, and designed to keep public funds away from the denomination’s growing network of schools, which often served the nation’s poor people.

From Everson v. Board of Education to today

In 1947, the Supreme Court articulated what was understood as a kind of bedrock principle, that “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” The case, Everson v. Board of Education, in some ways affirmed the Jeffersonian interpretation of the establishment clause as a “wall of separation” between church and state.

In a 5-to-4 decision in 2002, however, the nation’s high court declared in Zelman v. Simmons-Harris that an Ohio voucher program did not violate this principle because tax funds were not distributed to support a religious establishment, but the free choices of parents – a kind of constitutional circuit breaker. 

“When you’re dealing with a program like [Maine’s] that provides aid to individuals and provides them with a private choice over where to use that aid, the Supreme Court has made it clear, this severs that link between church and state, and therefore a program like this one is unquestionably constitutional under the establishment clause, even if it includes religious options,” says Michael Bindas, senior attorney for the Institute for Justice and lead counsel for the Carson case before the Supreme Court Wednesday.

In 2004, however, the Supreme Court suggested that there was a difference between public funds directed toward schools with a religious “status” and programs with an explicit religious “use.” In Locke v. Davey, the high court upheld a state scholarship program in Washington that excluded those studying theology. In 2017, the Supreme Court in Trinity Lutheran v. Comer employed this use-versus-status distinction to declare that the state of Missouri violated the free exercise clause of the First Amendment when it used its Blaine Amendment to exclude a church that applied for a public grant to resurface its playground. 

Mr. Bindas was also part of the legal team who argued for the plaintiffs in 2020’s Supreme Court decision in Espinoza v. Montana Department of Revenue, in which the Supreme Court said a state could not exclude religious families from educational choice programs that allowed for private options. 

The Constitution “condemns discrimination against religious schools and the families whose children attend them,” Chief Justice John Roberts wrote for another 5-to-4 majority. “They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand. ... A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

In the Carson case, however, Mr. Bindas will tell the court that the status-use distinction is constitutionally irrelevant. “What we’re arguing in this case is that you can call it discrimination based on religious use if you want, or call it discrimination based on status,” he says. “But at the end of the day, it’s discrimination based on religion.”

A federal appeals court upheld Maine’s exclusion of sectarian schools, in many ways relying on the distinction between religious status and religious use. And the state of Maine argues that it is not impinging on the free exercise of religion by denying subsidies for a sectarian religious education.  

“Religious schools can and do advance their own religion to the exclusion of all others, discriminate in both the teachers they employ and the students they admit, and teach religious views inimical to what is taught in public schools,” Aaron Frey, Maine’s attorney general, said in a public statement this year. “Parents are free to send their children to such schools if they choose, but not with public dollars.”

Ms. Carson says the exclusion of conservative Christian schools like Bangor, which has been so integral to the life of her family, hurts those who want to live their faith as freely as anyone else in Maine. They’ve known “families who were having a really hard time, or had to pull their kids when they got to high school, because ... they couldn’t justify anymore paying when the town would pay for it for them to go to a different school.”

What do states need to pay for?

In its brief, the state of Maine argues that the religious worldviews of the schools in question include policies that exclude LGBTQ students and employees, as well as those from other religions in many cases.

“We’re looking at potentially another wrecking ball to the wall of separation between church and state,” Jennifer Pizer, law and policy director for Lambda Legal, told Time magazine. “The fundamental notion that none of us should be required to pay for other people’s practice of religion is about as basic as it gets, and yet we’re seeing, in these education contexts, that notion flipped on its head.”

Indeed, a number of legal scholars believe there may be a host of implications for allowing public funds to subsidize sectarian schools as these cases continue to evolve. 

“The end game may very well be that the government has to in fact fund private religious schools if it is also funding public schools,” says Professor Hill at Case Western Reserve University. “That principle is lurking in there, that private schools should be entitled to the same public money to the same extent as public schools.”