Maine’s ban on public funds for religious schools goes to U.S. Supreme Court next week

A case concerning the public funding of religious schools in Maine is expected to reveal the current thinking of the United States Supreme Court on the separation of church and state.

Judges will hear argument from a distance in Carson v. Makin on December 8. The case drew a large number of “court friends briefs” from both sides.

As Maine defends the nearly 40-year-old state law before judges, it will have the backing of the Biden administration after the court earlier this month cleared U.S. Solicitor General Elizabeth Prelogar and a recently confirmed appointment to Biden, time to support the state’s arguments in court. In 2019, President Donald Trump’s Justice Department supported families challenging the law.

Few of Maine cases appear on the roster of the nation’s highest court. While the conservative wing of the court and judges’ interest in cases involving religion have grown in recent years, the odds of the Maine case ending up in court were still low. Judges agree to consider only one in 100 cases that they are invited to review.

The case, filed in federal court in Bangor in 2018, challenges a state law under which cities without public high schools pay tuition fees so that local students can attend a public or private school of their choice. in another community as long as it is not a religious school.

The three families’ lawsuit demanded public tuition fees for their children to attend Christian schools in Bangor and Temple Academy in Waterville. A federal judge in Maine ruled for the state in June 2019, and the 1st U.S. Court of Appeals upheld its ruling.

The legal question depends on whether, in practice, Maine prohibits public money from going to a school because of its religious status or because it would use the money to teach religion.

“It is not the religious status of an organization that determines whether it is eligible to receive public funds, but the use to which it will put those funds that dictates the outcome,” said the attorney general’s office. Maine, which defends state law, said in the brief he filed in Washington, DC, “By excluding sectarian schools, Maine refuses to fund explicitly religious activity that is inconsistent with free public education. “

Lawyers for the Liberty Counsel, which represents Maine parents, argued in their brief that the state’s tuition law is discriminatory.

“Maine’s sectarian exclusion discriminates against families eligible for the tuition assistance program and who believe that religious education is the best option for their child,” the file said. “Exclusion forces these families to choose between a public benefit to which they are entitled and their right to send their child to a religious school.

The case caught the attention of legal scholars.

In an article for Atlantic magazine, Kimberly Wehle, professor of law at the University of Baltimore, warned that “if a fractured court ends up requiring the use of public funds for education to teach” a worldview deeply Christian and Biblical “under these circumstances, the blurring of the long-standing separation of church and state in the United States has begun.

The court is not expected to render a decision in the case until next spring.

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