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The latest battle over state funding for religious schools, explained

The Supreme Court is considering whether school funding rules in Maine violate the First Amendment

This article was first published in the State of Faith newsletter. Sign up to receive the newsletter in your inbox each Monday night.

Note: This special edition of the State of Faith newsletter focuses on Carson v. Makin. The Supreme Court will hear oral arguments in the case on Wednesday.

Religious freedom was back in front of the Supreme Court this week in a case that could make it easier for faith-based schools across the country to receive government funds.

The lawsuit, Carson v. Makin, focuses on Maine’s public education system, which operates quite differently than systems in other states.

In Maine, students don’t necessarily have the option of attending a public secondary school that’s close to home. That’s because the state doesn’t require each region to have one and, instead, allows education officials to choose between maintaining their own school, contracting with schools in other regions or offering tuition assistance for an approved set of private schools, including some in other states.

In the Supreme Court case, the justices will consider this final option, which has fueled conflict in Maine. Two religious families are fighting for the right to use the tuition assistance at private, faith-based institutions.

Maine currently prevents most religious schools from receiving state money due to concerns about entangling the government with faith. (A handful of schools considered only nominally religious do have access to the funds.) The Supreme Court will debate whether this setup violates the Constitution’s First Amendment and equal protection clause.

Oral arguments were heard Wednesday. Here’s a brief primer on Carson v. Makin:

Didn’t the Supreme Court just rule on state funding for religious schools?

Yes. There’s no shame in being confused.

Just 18 months ago, the Supreme Court decided Espinoza v. Montana Department of Revenue, which centered on a scholarship program. Justices ruled 5-4 that excluding faith-based schools from the scheme amounted to status-based religious discrimination and therefore violated the Constitution’s free exercise clause.

“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,” wrote Chief Justice John Roberts in the majority opinion.

So why did the court take up the Maine case?

Carson v. Makin gets at a question that the Supreme Court left unanswered in the Espinoza ruling: Can a state refuse to send money to religious schools due to concerns about how the funds will be used?

The 1st U.S. Circuit Court of Appeals said yes in its 2020 decision in favor of Maine officials, which was handed down after the Supreme Court’s Espinoza ruling.

The 1st Circuit said “the exclusion of religious schools hinged on whether the money was used for religious instruction and to proselytize, rather than simply on whether the school was religious,” SCOTUSblog reported.

Could Maine’s approach still be seen as religious discrimination?

Many legal experts believe Maine officials will be fighting an uphill battle before the Supreme Court, since conservative justices, in particular, won’t be easily convinced to draw a distinction between status-based exclusion and use-based exclusion.

Even if the justices agree that Maine’s policy, unlike the Montana program, focuses on how funds are used, there would still be clashes about how to apply the establishment clause.

More liberal legal experts generally believe that sending public money to faith-based schools violates the First Amendment by entangling the government with religious activities, including proselytization.

Some conservative thinkers, on the other hand, don’t see a problem with using public money to support faith-based education. They argue that the unique character of religious schools doesn’t keep them from fulfilling the state’s secular goal: providing high-quality schooling to young people.

How do faith groups feel about Carson v. Makin?

As is the case with most Supreme Court battles, the faith community is divided over how the justices should rule. Some groups believe it’s wrong to treat private religious schools differently than secular ones, while others say it’s good for both the government and religious institutions if the law creates separation between church and state.

The Supreme Court’s decision is expected by the end of June.


Fresh off the press


Term of the week: Locke v. Davey

As I noted above, it’s easier to understand what’s happening in Carson v. Makin if you’re aware of how the Supreme Court has ruled on funding questions in the past. I’ve already discussed Espinoza, and now I’m going to walk you through another related suit.

In Locke v. Davey, which was decided in February 2004, the justices considered a college scholarship program in Washington state. Under the program rules, students could take the money they were awarded to either religious or secular institutions, but they couldn’t use it for ministerial training, including devotional theology degrees.

Joshua Davey, a scholarship recipient who wanted to major in pastoral ministries, filed the lawsuit because he felt these regulations violated his religious exercise rights. Although he won at the circuit level, the Supreme Court ruled against him 7-2, determining that Washington officials had a right to prevent public funds from going toward the training of clergy, which is clearly a religious activity.

Maine’s educational funding system reminds me of the Washington scholarship program because it focuses on the money’s use. Then again, Maine’s policy amounts to a much broader ban, since most faith-based schools are sectarian and integrate religion into their curriculum. Only time will tell how the court applies Locke v. Davey to this term’s case.


What I’m reading ...

Education Week recently published a very helpful (and very thorough) overview of Carson v. Makin. The article includes comments from one of the families involved in the lawsuit, as well as an overview of Maine’s unusual approach to public education. One of the interesting points made in the piece is that a ruling in favor of the families may lead to future lawsuits over religion and LGBTQ rights since recipients of state education funds have to abide by various anti-discrimination rules.

If you’ve enjoyed my brief summaries of past Supreme Court rulings, you’ll like the history lessons included in professor Charles Russo’s analysis of Carson v. Makin. Writing for The Conversation, he explores how the court’s approach to school funding cases evolved in battles over state-funded busing services and disability resources.


Odds and ends

Amanda Tyler and Holly Hollman from the Baptist Joint Committee for Religious Liberty discussed Carson v. Makin on the latest episode of their podcast, “Respecting Religion.” They’re hoping the court will side with Maine.

Fun fact: Chief Justice John Roberts’ son attended one of the “nominally religious” schools that Maine is willing to fund, according to SCOTUSblog. Cardigan Mountain School is a private, all-boys boarding and day school in Canaan, New Hampshire.

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