Maine allows private religious schools to participate in its tuition benefit program for families that don’t have a public high school in their communities — except those that seek to instill religious beliefs in their students.

That caveat is at the heart of , argued before the U.S. Supreme Court Wednesday, a case that is likely to determine whether states can continue to ban religious schools from publicly-funded choice programs. Based on the justices’ questioning, experts said Maine, and states with similar laws, would likely no longer be able to defend them.

“This absolutely discriminates against parents,” Michael Bindas, a senior attorney with the libertarian Institute for Justice, who represents the plaintiffs, told the court. The state is discriminating against religion, he added, because decisions about whether a school is too religious to participate is “based on the decision of a bureaucrat in Augusta.”

Christopher C. Taub, Maine’s chief deputy attorney general, countered that the state’s program is “religiously neutral” and only seeks to give families free public education “roughly equivalent” to what they would get in a district school. 

Wednesday’s hearing was the second time in two years the Supreme Court has considered whether public funds can pay for students to attend religious schools as part of school choice programs — an issue that public school advocates argue is a clear violation of the First Amendment’s separation of church and state. In 2020, the court ruled in , that the state could not exclude a religious school from a tax credit scholarship program simply because it was religious. The question in Carson takes the issue a step further, asking the court if officials can still ban such schools if they spend state money to teach religion. The fine legal parsing revolves around the issue of “status vs. use” — in this case, the difference between an institution that has a religious affiliation and one that uses public money to promote religion. 

“What’s worrying me is that if the state must give money to the schools, they are going to get into all kinds of religious disputes,” said Justice Stephen Breyer, one of the three iberal members of the court. “People will think the government favors some things as opposed to others, and that will cause strife.”

Bindas responded that the benefit “severs the link” between government spending and religious schools because it goes directly to parents, who ultimately make the choice. He said in a webinar following the hearing, that those who receive Pell Grants or go to college on the G.I. bill can already use funds at religious institutions. 

Justice Brett Kavanaugh, among the six conservative majority members of the court, said the plaintiffs in the case — two families that were denied the benefit — are “seeking equal treatment, not special treatment.”

Justice Samuel Alito noted, as Bindas did, that until 1980, the state allowed schools that teach religion to participate. “Are you aware of a history of strife?” he asked.

Alex Luchenitser, an associate vice president at Americans United for Separation of Church and State, described Wednesday’s hearing as “troubling.”

“Very few of the justices paid any attention to the longstanding principle at the heart of American constitutional tradition —.that taxpayers should not be forced to fund religious education,” he said.

Because both schools attended by students in the case are opposed to hiring gay teachers, and one does not admit transgender students, a decision in favor of the plaintiffs could mean tax dollars would fund schools that discriminate based on sexual orientation or gender identity.

‘Picking and choosing’

Carson focuses on a Maine law in which towns without a high school cover the cost of tuition for students to attend private schools or public schools in other districts. 

Arguing for the Biden administration, Malcolm Stewart, U.S. deputy solicitor general, said the state is being fair because the program wasn’t “intended to provide the broadest range of possible choices. It’s intended to provide a substitute for public education.”

But at the webinar, Bindas said he was “confident the justices are going to agree with us,” in part because the benefit can be used at elite, expensive private schools that are far from equivalent to what a public school can provide. The state has even allowed families to use the benefit at boarding schools in states as far as California.

Joshua Dunn, a political science professor at the University of Colorado-Colorado Springs, said it could be “difficult for Maine” to win this case because the state is “picking and choosing among religious schools.”

That aspect of the state’s program both hurts and helps its case, added Derek Black, a constitutional law professor at the University of South Carolina. The court could find that the state is not discriminating against religion because it does allow some sectarian schools to participate.

But he added, “I don’t see five people trying to rule in Maine’s favor right now.”

The tuitioning programs are unique to New England, but a decision in favor of the plaintiffs would strike another blow to state laws — known as “Blaine Amendments” — that restrict government funding of religious schools.

In , for example, five families are suing the state for not allowing them to spend funds in their 529 college savings accounts on tuition at private schools. The 2017 federal tax cut law included a provision that allows families to use these accounts for K-12 expenses. But Michigan still prohibits their use at private schools, which, officials argue, means they’re not discriminating against religious schools.

While the argument in Carson doesn’t apply in the Michigan case, “the only thing keeping Blaine Amendments alive is this status-use distinction,” Dunn said. “Getting rid of it likely would remove the last bit of life support that they’re on.”

Dunn suggested the justices could rule that, as in Espinoza, this is really a case of discrimination based on religious status, overruling the 1st Circuit Court of Appeals, which argued it was a case about religious use of public funds. 

Black said considering how little the justices’ questions focused on using public funds to teach religion, that could be the way they’re leaning. 

But deciding this case on the grounds of Espinoza “just delays the issue” because there are already similar cases asking the same question, Dunn said. “I don’t think they can dodge it.”

There’s also a slim chance that the court could decide the plaintiffs didn’t have “standing” — the right to make the legal argument — because the religious schools the plaintiffs chose to attend have said they wouldn’t accept public funds anyway. Both Justices Clarence Thomas and Amy Coney Barrett raised that issue.

But that’s unlikely to be the result, Black said  “They didn’t take this case to issue a ruling based on standing.”

The U.S. Supreme Court on Friday announced that it will hear , a case involving Maine’s tuition assistance program. Following the court’s decision last year in Espinoza v. Montana Department of Revenue, plaintiffs in the case argue that excluding religious schools from the program is a violation of their constitutional rights, while the state has said the program is only meant to provide students a public education they can’t access in their own community. 

School choice advocates celebrated the court’s decision. In a statement, Leslie Hiner, who leads EdChoice’s legal efforts, said, “We applaud the action of the Court in agreeing to hear a case brought by parents in Maine who have been denied the opportunity to send their children to a school of faith using the state’s town tuitioning vouchers.”

The U.S. Supreme Court will discuss Thursday whether to hear a case that could settle for good whether states can exclude religious schools from publicly funded voucher programs.

The argument in is over Maine’s tuition assistance program, which pays for students in towns without a public school to attend another one of their choice — public or private — as long as it’s not religious.

In October last year, the 1st U.S. Circuit Court of Appeals upheld the religious exclusion, and the plaintiffs appealed to the Supreme Court. But earlier this month the 2nd Circuit reached the , ruling that students in a similar program in Vermont can use public funds at religious schools.

“It is a mess, to put it mildly,” said Michael Bindas, a senior attorney with the libertarian Institute for Justice, which is representing the two families in Maine who sued over the state’s policy. The contradiction “cries out for Supreme Court review, and only the Supreme Court can resolve it,” he said.

This time last year, school choice advocates won a major victory in Espinoza v. Montana Department of Revenue, when the court ruled 5-4 that officials could not exclude religious schools from a state tax credit scholarship program simply because they are religious. It was a major setback for states with so-called Blaine amendments, 19th century laws that prevent public funds from supporting religious schools. The Espinoza ruling sparked a renewed push at the state level to expand such scholarship programs, and former Education Secretary Betsy DeVos the decision opened the door for religious-oriented charter schools.

The justices, however, left one issue unsettled. The Espinoza ruling means states can’t prohibit religious schools from participating in a school choice program because of their religious status, but the justices didn’t resolve whether states could exclude schools because they teach students about religion.

The Institute for Justice addressed this in to the court following the 2nd Circuit’s decision in the Vermont case, referring to “the utter disarray of the law in this area.”

The court typically schedules days when the justices discuss current cases as well as whether to hear or reject appeals. The “order list” is usually released a day or so after justices hold a conference, Bindas explained. That means the court could announce as soon as Monday whether they’ll hear the Carson case, but a quick decision could mean they’re going to pass, he added. If the justices decide to hold it over for a “cleanup conference” next week, that could signal their intention to hear the case.

Maine Attorney General Aaron Frey has said that the state’s law doesn’t discriminate against religious schools because it is “simply declining to pay for religious instruction that would be unavailable in a public school.” Ted Fisher, spokesman for the Vermont Agency of Education, said the department doesn’t comment on pending litigation.

Anti-discrimination policies

If the justices agree to hear it, Carson could be the first school choice case before the court since the confirmation of Associate Justice Amy Coney Barrett, a conservative Catholic who served as a trustee for a religious school that participates in Indiana’s school choice program and doesn’t welcome children with same-sex parents.

The Espinoza ruling was a 5-4 decision, and conservatives now hold a 6-3 supermajority on the court.

Some legal experts have suggested the court’s decision last week in — a case involving a Catholic social services agency that opposes certifying same-sex couples as foster parents — would have an impact on school voucher programs.

In Fulton, the court ruled unanimously that the city violated the agency’s First Amendment’s religious freedom protections by requiring it to give up its opposition to same-sex relationships in order to receive a government contract. The connection to school choice is that religious schools, such as the one where Barrett served as a trustee, are often opposed to hiring LGBTQ staff or admitting gay students or those with gay parents.

But the impact of the decision on school choice programs is limited. While the opinion was unanimous, the court focused on a narrow exemption in the city’s contract with the agency.

“Fulton does not create a right to religious exemptions from anti-discrimination laws that apply equally to everyone,” said Alex Luchenitser, associate vice president and associate legal director at Americans United for Separation of Church and State. “State constitutional prohibitions and laws that prohibit use of public funds to support religious instruction generally do not have any exemptions and so should not be affected by Fulton.”

The issue is relevant in , a case before a Maryland district court. The state excluded the religious school from a voucher program because the school’s handbook says it “supports a biblical view of marriage” and that “God immutably bestows gender upon each person at birth as male or female.” The school, which serves low-income students, said these statements don’t impact its admissions process, but the state still declined to admit it to the program.

The state is expected to submit a brief Friday requesting a decision in the case, with the plaintiff’s request expected in July.

Bindas, with the Institute for Justice, noted that the plaintiffs in the Maine case are arguing that families attending any religious school should be able to participate in a state’s school choice program. As it stands, Vermont could try to get around the appeals court’s decision by passing new legislation excluding religious schools because they teach students about doctrine or have a time for worship.

“Using public funds for religious instruction violates the religious freedom of taxpayers who are forced to subsidize faiths to which they do not subscribe,” said Luchenitser, who has argued that the court should decline to hear the appeal in the Carson case.

Dave and Amy Carson kept their daughter Olivia at the Christian school she attends but that doesn’t participate in the tuition assistance program. The other plaintiffs in the case, Angela and Troy Nelson, wanted to send their children to a religious school, but instead sent their two children to a secular private school that accepts vouchers.

“You either forgo the benefit,” Bindas said, “or you forgo the school that you think is best for your child.”

In a broader sense, the Fulton decision shows the court continues to move toward a “more aggressive” position in favor of religious rights, said Joshua Dunn, a political science professor at the University of Colorado-Colorado Springs.

“The reasoning of Espinoza … is hard to square with the 1st Circuit’s opinion,” Dunn said, adding that if the court decides to hear the case, “Maine should be very worried.”