Supreme Court considers religious freedoms in a case that could narrow the separation between church and state

• The Supreme Court on Wednesday heard a challenge from two families who claim that Maine violated their religious rights.
• The families applied for funds from Maine's tuition-assistance program to enroll their kids in faith-based schools. But state funds only go to "nonsectarian" schools.
• The court's conservatives appeared receptive to the parents' position. 

The Supreme Court on Wednesday considered whether Maine violated religious rights in a case that could narrow the separation between church and state in the United States. 

The justices heard a challenge to a Maine rule that excludes faith-based schools from a tuition-assistance program. In Maine, school-aged children have the right to a free public education. But some areas of the state do not have public schools. To ensure the student's right is met, Maine devised a program that offers taxpayer funds to cover students' tuition fees at nearby private schools. 

In 2018, two families, the Carsons and the Nelsons, wanted to enroll their kids in private schools that offer religious teaching. They sought funding from the state but did not qualify, as the law requires the school to be "nonsectarian" in order to be eligible. The Carsons and Nelsons sued the state.

In the case of Carson v. Makin, the families argue that this rule is discriminatory and violates their First Amendment right to exercise religion freely. A lower court ruled against their challenge. But the Supreme Court, which in recent years has protected religious liberties, took up their appeal. 

"It is only because of religion that they are excluded. You can call that discrimination based on religious use. You can call it discrimination based on religious status. Call it what you will. Either way, it is discrimination based on religion and either way, it is unconstitutional," Michael Bindas, a senior attorney at the Institute for Justice, argued on behalf of the parents on Wednesday.

Christopher Taub, Maine's chief deputy attorney general, defended the state's rule to the justices on Wednesday.

"The reason that schools that promote a particular faith are not eligible to participate is simple: Maine has determined that as a matter public policy, public education should be religiously neutral," he said.

The court's conservatives, who make up a 6-3 majority, seemed receptive to the challenge from the parents.

Justice Samuel Alito questioned whether a school that is associated with a religious group and teaches students about religious beliefs concerning equality, dignity, and charity work, but doesn't impose a religious "dogma," would be disqualified from Maine's program.

"Public schools often have a set of values that they want to instill — public service, be kind to others, be generous," Taub responded. "What would make the difference is whether children are being taught that your religion demands that you do these things."

Alito interrupted Taub, saying: "Then you really are discriminating on the basis of religious belief. What I described is, I think, pretty close to Unitarian Universalism, and that is a religious community."

Chief Justice John Roberts also raised concerns about how Maine's rule could discriminate between religions, which Taub pushed back on.

"You're discriminating among religions based on their belief, right?" Roberts asked. 

Justice Brett Kavanaugh pointed out that the parents "are seeking equal treatment, not special treatment."

"They're saying don't treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next door," he said.

Justice Elena Kagan, a liberal, raised a hypothetical about whether the state would allow a school that teaches white supremacy to apply for its tuition-assistance program.

"Knowing what I know about Maine and our legislature, a way would be found to ensure that that school is not allowed to participate," Taub said.

Alito followed up on that question, pressing Taub on whether a school that teaches critical race theory would be allowed to apply for the program.

"If teaching critical race theory is antithetical to a public education, then the legislature would likely address that," Taub said.

—Mark Joseph Stern (@mjs_DC) December 8, 2021

The Supreme Court will hand down a ruling on the case by the end of next June.

The decision will also impact the hotly debated issue of "school choice." Proponents of school choice say it offers options beyond the traditional public school system, while critics say it erodes public schools, which most students in the US attend.

The court's "conservative justices may be poised to turn America's foundational principle of religious freedom on its head," Americans United for Separation of Church and State, a nonprofit organization, said in a statement following Wednesday's arguments. "Maine's program is intended to support secular and inclusive education. Like church-state separation, public education is a unifying force in our society that ensures everyone is treated equally under the law regardless of what we believe, what we look like, our level of ability, or who we love."