Supreme Court wary of ban on state aid to religious schools

WASHINGTON – On Wednesday, the Supreme Court appeared poised to take another step forward by requiring states to pay for religious education, with majority of judges saying they would not allow Maine to exclude religious schools from a state tuition program.

The court said states can choose to provide aid to religious schools as well as other private schools. The question in the new case was the reverse: can states refuse to provide such aid if it is made available to other private schools?

Maine requires rural communities without public high schools to organize the education of their young residents in one of two ways. They can sign contracts with neighboring public schools, or they can pay tuition at a private school chosen by parents as long as it is, according to the terms of state law, “a non-sectarian school under the First Amendment of the United States Constitution. “

Two families in Maine who send or wish to send their children to religious schools have challenged the law, saying it violates their right to freely exercise their faith.

Individuals and religious groups have enjoyed a winning streak in the Supreme Court, which looked likely to continue in the new case. In recent rulings, judges have spoken out against restrictions on attending religious gatherings to fight the coronavirus pandemic and Philadelphia’s attempt to ban a Catholic agency that refused to work with same-sex couples from screen potential foster parents.

The court also ruled that the Trump administration could allow employers with religious objections to deny contraceptive coverage to female workers and that employment discrimination laws did not apply to many teachers in schools. religious.

The purpose of the Maine law, said Christopher C. Taub, a state attorney, was to provide something akin to public education to young people in remote areas. “This is the benefit at issue here: free public education,” he said. “That private schools are sometimes enlisted to provide the benefit is of no constitutional significance. “

Judge Elena Kagan said the Maine program sought to address a separate problem.

“It is really a default program for a very small number of students living in isolated areas where the state has decided it does not have the resources to provide public schools,” she said. .

Judge Samuel A. Alito Jr. asked if the program allowed parents to use state money for tuition at elite private boarding schools in other states, but not at local religious schools .

Mr. Taub said yes. “An Andover or a Phillips Exeter can be different from the Bangor Public High School in many ways,” he said. “But what they share in common is the most important characteristic is that they do not inculcate religion.”

The case, Carson v. Makin, No. 20-1088, was largely similar to the Montana one decided by the court last year. In that case, the court ruled that states should allow religious schools to participate in programs offering scholarships to students attending private schools.

Chief Justice John G. Roberts Jr., writing for the majority in this case, Espinoza v. Montana Department of Revenue said a provision in the state constitution prohibiting aid to church-run schools violated the federal constitution’s free exercise protection. of religion by discriminating against religious people and schools.

“A state does not need to subsidize private education,” he wrote. “But once a state decides to do it, it can’t disqualify some private schools just because they’re religious.”

But Montana’s decision focused on the religious status of schools, rather than their curricula. There could be a difference, Chief Justice Roberts wrote last year, between an institution’s religious identity and its conduct.

“We recognize the point,” he wrote, “but we don’t need to consider it here”. The Maine case will turn on point.

Chief Justice Roberts and other Conservative justices made it clear on Wednesday that they believed the distinction drawn in the Montana case between religious status and religious activity made no constitutional difference.

The chief justice asked, for example, whether the state would pay tuition at a religious school whose doctrine calls for public service and which “looks like a public school, but it belongs to religion.” Mr. Taub said yes.

What about a religious school that “is imbued in every subject with their vision of the faith? Asked the chief justice. Mr. Taub said such a school would not qualify.

Chief Justice Roberts said it was a significant concession. “So you discriminate between religions based on their beliefs, don’t you? He asked, adding that the government cannot “distinguish between religions on the basis of their doctrine”.

Michael Bindas, lawyer at the Institute for Justice, a libertarian group that represents families, said that “religious discrimination is religious discrimination.”

“After all, religious schools teach religion, just like a soccer team plays soccer or a book club reads books,” he said. “Yeah, that’s part of what they do. It’s also part of who they are.

One of the schools involved in the case, Temple Academy in Waterville, Maine, says it expects its teachers “to incorporate biblical principles into their teaching in every subject” and teach students “to impart knowledge. word of Christianity ”. The other, Bangor Christian School, says it seeks to develop “within each student a Christian worldview and a Christian philosophy of life.”

The two schools “candidly admit that they discriminate against homosexuals, transgender people and non-Christians,” the Maine Supreme Court brief said.

Judge Elena Kagan said this point was not in dispute. “These schools are blatantly discriminatory,” she said. “They are proudly discriminatory. Other people will not understand why around the world taxpayer money goes to discriminatory schools.

Judge Neil M. Gorsuch said Maine’s anti-discrimination laws were not at issue in the case.

Much of the argument was devoted to hypothetical questions. Mr Taub said that schools which taught Marxism, Leninism or white supremacy “would do something completely incompatible with public education”, although he acknowledged that the state law at issue in this case did not currently prohibit it.

“Would you say the same about a school that teaches critical race theory? Asked Judge Alito.

Mr Taub said he was “not sure what it means to teach critical race theory” and that “the Maine legislature should consider what it really means.”

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