For the second time in three years, the Supreme Court on Tuesday ruled in favor of religious schools seeking access to public education money in a decision that will further complicate efforts to keep religious organizations from receiving state funds.

Justices in the majority said that a Maine law limiting the participation of faith-based private schools in the state’s unique public education system violated the free exercise clause of the First Amendment.

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments ... operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” wrote Chief Justice John Roberts in the majority opinion, which was joined by all five of his fellow conservatives.

The court’s three liberal justices dissented, arguing that the majority was trampling the First Amendment’s establishment clause in its effort to protect the free exercise of faith.

If the court continues down its current path, the result will be more religion-related conflict, not less, wrote Justice Stephen Breyer in his dissent.

“State funding of religious activity risks the very social conflict based upon religion that the religion clauses were designed to prevent,” he wrote.

The latest battle over state funding for religious schools, explained

How faith groups reacted

Many religious freedom advocates echoed Breyer’s concerns in their statements on Tuesday’s ruling. The court’s recent funding decisions have weakened the wall between church and state and threatened both institutions in the process, they said.

“A majority of justices on the Supreme Court keep ignoring the distinctive role of religion in law and society, which is best served by separating the institutions of religion and government. That separation, which Maine sought to protect, is an important part of America’s religious liberty legacy,” said Holly Hollman, general counsel for the Baptist Joint Committee for Religious Liberty, in a statement.

Rachel Laser, president and CEO of Americans United for Separation of Church and State, said that Tuesday’s decision could lead more public funding to go toward religious activity.

“Far from honoring religious freedom, this decision tramples the religious freedom of everyone,” she said in a statement.

But other legal experts and faith leaders celebrated the decision, arguing that it ensures a fairer future for all people of faith.

“The essential promise of the First Amendment’s religion clause is to guarantee religious freedom in the United States by requiring government neutrality toward religion. A state discriminating against religion — as Maine did in its tuition assistance program — is just as unconstitutional as a state promoting one particular religion. In today’s ruling, the Supreme Court has advanced religious liberty,” said Nathan Diament, executive director of the Orthodox Union Advocacy Center.

Kelly Shackelford, president, CEO and chief counsel for First Liberty Institute, shared a similar assessment, saying that, “This is a great day for religious liberty in America.”

The country is better off when people of faith and religious institutions have access to public benefit programs, according to leaders from the U.S. Conference of Catholic Bishops.

“In our pluralistic society, it is vital that all people of faith be able to participate in publicly available programs and so to contribute to the common good,” they said in a statement.

Funding for religious schools

The Supreme Court case, Carson v. Makin, stemmed from conflict over Maine’s public education system, which operates quite differently than school systems in other states.

In recognition of Maine’s low population density, state law does not require each region to run its own public school. Instead, individual “school administrative units” can choose to bus students to other regions or to provide tuition assistance to certain private schools. At issue in the case was whether state officials could refuse to offer that assistance to families attending sectarian religious schools.

Maine officials said it was important to exclude many faith-based institutions in order to ensure that public money didn’t fund religious activity. The families who brought the lawsuit, however, said the state was engaged in religious discrimination.

The 1st U.S. Circuit Court of Appeals sided with Maine, ruling that officials had not violated the First Amendment. But on Tuesday, the Supreme Court overturned that decision, determining that lower court judges misunderstood the relationship between the Maine case and a recent battle involving a scholarship program in Montana.

In the earlier case, Montana officials had sought to exclude sectarian schools from their program due to concerns about sending public money to religious institutions. The Supreme Court ruled 5-4 in 2020 that this exclusion represented status-based discrimination and violated the Constitution’s free exercise clause.

Although Maine officials had argued that their case shouldn’t be affected by the Montana decision — an argument that the 1st Circuit accepted — the Supreme Court said the two cases were closely related. In Maine, as in Montana, schools were being frozen out of a public benefit because of their religious status, Roberts wrote.

“Were we to accept Maine’s argument, our decision in (the Montana case) would be rendered essentially meaningless,” he said.

Religious freedom conflict

In the majority opinion, Roberts pushed back against dissenters’ characterization of the ruling, arguing that the decision respects both of the First Amendment’s religion clauses.

“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the establishment clause,” he wrote.

But the liberal justices argued that Roberts downplayed the significance of the decision. Moving forward, it seems as if states will be forced to provide funding for faith-based alternatives in programs built around secular social goods, Breyer wrote.

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“What happens once ‘may’ becomes ‘must’? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?” he said.

In her dissenting opinion, Justice Sonia Sotomayor said Tuesday’s decision is part of the court’s broader abandonment of the principles of religious freedom.

“This court continues to dismantle the wall of separation between church and state that the Framers fought to build,” she wrote.

Similar tension will likely be visible when the Supreme Court rules in its final religion case of the term sometime in the next two weeks. In Kennedy v. Bremerton, which centers on a football coach who prayed at the 50-yard line after games, the justices were also asked to consider the interplay between religious exercise protections and the establishment clause.

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