The case could mark the court’s latest step to expand religious freedom, a trend bolstered by the addition of three of former President Donald Trump’s nominees and favored by Justice Samuel Alito, who claimed in a 2020 speech that “in certain quarters” religious liberty is “fast becoming a disfavored right.”
In Wednesday’s case, lawyers for two sets of parents will argue that Maine’s program infringes upon their rights because it bars them from using the funds to send their children to the religious school of their choosing.
To make their case, they point to past precedent such as a dispute from 2017 where the court determined that a state could not restrict funds for resurfacing playgrounds from a church-owned preschool based solely on its religious identity. In June 2020, the court held that a state could not exclude families and schools from participating in a student aid program because of a school’s religious status. Last term, the justices also ruled in favor of houses of worship in a series of emergency applications challenging Covid-19 restrictions.
In Maine, parents living in some rural areas without a school district receive vouchers so that they can send their kids to public or private schools in other areas The aim of the program, the state says, is to give students an education that is roughly equivalent to what they would have had if there had been a public school in their area.
To participate in the program, a private school must meet the requirements of Maine’s compulsory education law. The school district must pay tuition, up to a statutory limit, “at the public school or the approved private school of the parent’s choice” and the school must be “nonsectarian.”
A school’s affiliation with a religious institution does not, on its own, render a school ineligible. Instead, the state looks at the sectarian nature of the instruction and whether it “promotes the faith or belief system with which it is associated.”
Maine argues that the nonsectarian provision is necessary to ensure that public money is not funding religious education. While some religiously affiliated schools are allowed, the state draws the line if the educational material is presented through the lens of faith.
Religious organizations “that are willing to provide education comparable to a public education” are eligible to receive the public funds, Christopher Taub, Maine’s chief deputy attorney general, wrote in court papers, but the state declines to fund schools that offer “an education designed to proselytize and inculcate children with a particular faith.”
The Biden administration supports Maine in the dispute.
Lawyers for the parents say they are being unlawfully excluded because their children attend or wish to attend a sectarian school.
David and Amy Carson send their children to Bangor Christian, a school they say they selected because of its academic rigor and the fact it aligns with their religious beliefs. They seek to use the state funds to help pay the tuition. According to the court record, the school has a mission to instill a “Biblical world view” and it will not hire teachers who are LGBTQ.
Troy and Angela Nelson seek to send their child to Temple Academy, a religiously affiliated school, but would need the tuition assistance to do so. The school, located in Waterville, Maine, expects its teachers, according to court papers, “to integrate Biblical principles with their teaching in every subject.”
“Maine’s sectarian exclusion discriminates against families who are eligible for the tuition assistance program and believe that a religious education is the best option for their child,” Michael E. Bindas, a lawyer for the Institute of Justice who is representing the parents, said in legal briefs.
In the past, courts have drawn a distinction at times between a religious organization’s “status” or identity and how the schools will actually “use” the funds. A federal appeals court used that reasoning to uphold Maine’s program.
The 1st US Circuit Court of Appeals said that Maine’s program does not “bar schools from receiving funding simply based on their religious identity,” but, instead, bars the funds based on the “religious use” that the school would make of the funds.
Eric Rassbach, vice president at the Becket Fund for Religious Liberty who filed a brief in support of the parents, said the so called “status/use” distinction is meaningless in the context of religious schools.
“The court should reject the idea that to participate in a public benefits program, religious schools have to stop exercising their religion,” Rassbach told CNN.
While the court has in recent years trended to side with plaintiffs making religious liberty arguments, Alito has said the justices aren’t moving quickly enough.
In June, Alito wrote a furious opinion joined by Justices Clarence Thomas and Neil Gorsuch when he said that the court had not gone far enough in ruling in favor of a Catholic foster care agency that refused to work with same-sex couples as potential parents because the agency believes that marriage should be between a man and a woman.
Alito complained that his colleagues — while ruling unanimously in favor of the agency — had “emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”
Wednesday will be another chance to see what the justices are thinking.