Maine allows private religious schools to participate in its tuition benefit program for families that don鈥檛 have a public high school in their communities 鈥� except those that seek to instill religious beliefs in their students.

That caveat is at the heart of , argued before the U.S. Supreme Court Wednesday, a case that is likely to determine whether states can continue to ban religious schools from publicly-funded choice programs. Based on the justices鈥� questioning, experts said Maine, and states with similar laws, would likely no longer be able to defend them.

鈥淭his absolutely discriminates against parents,鈥� Michael Bindas, a senior attorney with the libertarian Institute for Justice, who represents the plaintiffs, told the court. The state is discriminating against religion, he added, because decisions about whether a school is too religious to participate is 鈥渂ased on the decision of a bureaucrat in Augusta.鈥�

Christopher C. Taub, Maine鈥檚 chief deputy attorney general, countered that the state鈥檚 program is 鈥渞eligiously neutral鈥� and only seeks to give families free public education 鈥渞oughly equivalent鈥� to what they would get in a district school.聽

Wednesday鈥檚 hearing was the second time in two years the Supreme Court has considered whether public funds can pay for students to attend religious schools as part of school choice programs 鈥� an issue that public school advocates argue is a clear violation of the First Amendment鈥檚 separation of church and state. In 2020, the court ruled in , that the state could not exclude a religious school from a tax credit scholarship program simply because it was religious. The question in Carson takes the issue a step further, asking the court if officials can still ban such schools if they spend state money to teach religion. The fine legal parsing revolves around the issue of 鈥渟tatus vs. use鈥� 鈥� in this case, the difference between an institution that has a religious affiliation and one that uses public money to promote religion.聽

鈥淲hat鈥檚 worrying me is that if the state must give money to the schools, they are going to get into all kinds of religious disputes,鈥� said Justice Stephen Breyer, one of the three iberal members of the court. 鈥淧eople will think the government favors some things as opposed to others, and that will cause strife.鈥�

Bindas responded that the benefit 鈥渟evers the link鈥� between government spending and religious schools because it goes directly to parents, who ultimately make the choice. He said in a webinar following the hearing, that those who receive Pell Grants or go to college on the G.I. bill can already use funds at religious institutions. 

Justice Brett Kavanaugh, among the six conservative majority members of the court, said the plaintiffs in the case 鈥� two families that were denied the benefit 鈥� are 鈥渟eeking equal treatment, not special treatment.鈥�

Justice Samuel Alito noted, as Bindas did, that until 1980, the state allowed schools that teach religion to participate. 鈥淎re you aware of a history of strife?鈥� he asked.

Alex Luchenitser, an associate vice president at Americans United for Separation of Church and State, described Wednesday鈥檚 hearing as 鈥渢roubling.鈥�

鈥淰ery few of the justices paid any attention to the longstanding principle at the heart of American constitutional tradition 鈥�.that taxpayers should not be forced to fund religious education,鈥� he said.

Because both schools attended by students in the case are opposed to hiring gay teachers, and one does not admit transgender students, a decision in favor of the plaintiffs could mean tax dollars would fund schools that discriminate based on sexual orientation or gender identity.

鈥楶icking and choosing鈥�

Carson focuses on a Maine law in which towns without a high school cover the cost of tuition for students to attend private schools or public schools in other districts.聽

Arguing for the Biden administration, Malcolm Stewart, U.S. deputy solicitor general, said the state is being fair because the program wasn鈥檛 鈥渋ntended to provide the broadest range of possible choices. It鈥檚 intended to provide a substitute for public education.鈥�

But at the webinar, Bindas said he was 鈥渃onfident the justices are going to agree with us,鈥� in part because the benefit can be used at elite, expensive private schools that are far from equivalent to what a public school can provide. The state has even allowed families to use the benefit at boarding schools in states as far as California.

Joshua Dunn, a political science professor at the University of Colorado-Colorado Springs, said it could be 鈥渄ifficult for Maine鈥� to win this case because the state is 鈥減icking and choosing among religious schools.鈥�

That aspect of the state鈥檚 program both hurts and helps its case, added Derek Black, a constitutional law professor at the University of South Carolina. The court could find that the state is not discriminating against religion because it does allow some sectarian schools to participate.

But he added, 鈥淚 don鈥檛 see five people trying to rule in Maine鈥檚 favor right now.”

The tuitioning programs are unique to New England, but a decision in favor of the plaintiffs would strike another blow to state laws 鈥� known as 鈥淏laine Amendments鈥� 鈥� that restrict government funding of religious schools.

In , for example, five families are suing the state for not allowing them to spend funds in their 529 college savings accounts on tuition at private schools. The 2017 federal tax cut law included a provision that allows families to use these accounts for K-12 expenses. But Michigan still prohibits their use at private schools, which, officials argue, means they鈥檙e not discriminating against religious schools.

While the argument in Carson doesn鈥檛 apply in the Michigan case, 鈥渢he only thing keeping Blaine Amendments alive is this status-use distinction,鈥� Dunn said. 鈥淕etting rid of it likely would remove the last bit of life support that they鈥檙e on.鈥�

Dunn suggested the justices could rule that, as in Espinoza, this is really a case of discrimination based on religious status, overruling the 1st Circuit Court of Appeals, which argued it was a case about religious use of public funds. 

Black said considering how little the justices鈥� questions focused on using public funds to teach religion, that could be the way they鈥檙e leaning. 

But deciding this case on the grounds of Espinoza 鈥渏ust delays the issue鈥� because there are already similar cases asking the same question, Dunn said. 鈥淚 don’t think they can dodge it.鈥�

There鈥檚 also a slim chance that the court could decide the plaintiffs didn鈥檛 have 鈥渟tanding鈥� 鈥� the right to make the legal argument 鈥� because the religious schools the plaintiffs chose to attend have said they wouldn鈥檛 accept public funds anyway. Both Justices Clarence Thomas and Amy Coney Barrett raised that issue.

But that鈥檚 unlikely to be the result, Black said  鈥淭hey didn鈥檛 take this case to issue a ruling based on standing.鈥�

The U.S. Supreme Court on Friday announced that it will hear聽,聽a case involving Maine鈥檚 tuition assistance program. Following the court鈥檚 decision last year in聽Espinoza v. Montana Department of Revenue,聽plaintiffs in the case argue that excluding religious schools from the program is a violation of their constitutional rights, while the state has said the program is only meant to provide students a public education they can鈥檛 access in their own community.聽

School choice advocates celebrated the court鈥檚 decision. In a statement, Leslie Hiner, who leads EdChoice鈥檚 legal efforts, said,聽鈥淲e applaud the action of the Court in agreeing to hear a case brought by parents in Maine who have been denied the opportunity to send their children to a school of faith using the state鈥檚 town tuitioning vouchers.鈥�

The U.S. Supreme Court will discuss Thursday whether to hear a case that could settle for good whether states can exclude religious schools from publicly funded voucher programs.

The argument in is over Maine鈥檚 tuition assistance program, which pays for students in towns without a public school to attend another one of their choice 鈥� public or private 鈥� as long as it鈥檚 not religious.

In October last year, the 1st U.S. Circuit Court of Appeals upheld the religious exclusion, and the plaintiffs appealed to the Supreme Court. But earlier this month the 2nd Circuit reached the , ruling that students in a similar program in Vermont can use public funds at religious schools.

鈥淚t is a mess, to put it mildly,鈥� said Michael Bindas, a senior attorney with the libertarian Institute for Justice, which is representing the two families in Maine who sued over the state鈥檚 policy. The contradiction 鈥渃ries out for Supreme Court review, and only the Supreme Court can resolve it,鈥� he said.

This time last year, school choice advocates won a major victory in Espinoza v. Montana Department of Revenue, when the court ruled 5-4 that officials could not exclude religious schools from a state tax credit scholarship program simply because they are religious. It was a major setback for states with so-called Blaine amendments, 19th century laws that prevent public funds from supporting religious schools. The Espinoza ruling sparked a renewed push at the state level to expand such scholarship programs, and former Education Secretary Betsy DeVos the decision opened the door for religious-oriented charter schools.

The justices, however, left one issue unsettled. The Espinoza ruling means states can鈥檛 prohibit religious schools from participating in a school choice program because of their religious status, but the justices didn鈥檛 resolve whether states could exclude schools because they teach students about religion.

The Institute for Justice addressed this in to the court following the 2nd Circuit鈥檚 decision in the Vermont case, referring to 鈥渢he utter disarray of the law in this area.鈥�

The court typically schedules days when the justices discuss current cases as well as whether to hear or reject appeals. The 鈥渙rder list鈥� is usually released a day or so after justices hold a conference, Bindas explained. That means the court could announce as soon as Monday whether they鈥檒l hear the Carson case, but a quick decision could mean they鈥檙e going to pass, he added. If the justices decide to hold it over for a 鈥渃leanup conference鈥� next week, that could signal their intention to hear the case.

Maine Attorney General Aaron Frey has said that the state鈥檚 law doesn鈥檛 discriminate against religious schools because it is 鈥渟imply declining to pay for religious instruction that would be unavailable in a public school.鈥� Ted Fisher, spokesman for the Vermont Agency of Education, said the department doesn鈥檛 comment on pending litigation.

Anti-discrimination policies

If the justices agree to hear it, Carson could be the first school choice case before the court since the confirmation of Associate Justice Amy Coney Barrett, a conservative Catholic who served as a trustee for a religious school that participates in Indiana鈥檚 school choice program and doesn鈥檛 welcome children with same-sex parents.

The Espinoza ruling was a 5-4 decision, and conservatives now hold a 6-3 supermajority on the court.

Some legal experts have suggested the court鈥檚 decision last week in 鈥� a case involving a Catholic social services agency that opposes certifying same-sex couples as foster parents 鈥� would have an impact on school voucher programs.

In Fulton, the court ruled unanimously that the city violated the agency鈥檚 First Amendment鈥檚 religious freedom protections by requiring it to give up its opposition to same-sex relationships in order to receive a government contract. The connection to school choice is that religious schools, such as the one where Barrett served as a trustee, are often opposed to hiring LGBTQ staff or admitting gay students or those with gay parents.

But the impact of the decision on school choice programs is limited. While the opinion was unanimous, the court focused on a narrow exemption in the city鈥檚 contract with the agency.

鈥淔ulton does not create a right to religious exemptions from anti-discrimination laws that apply equally to everyone,鈥� said Alex Luchenitser, associate vice president and associate legal director at Americans United for Separation of Church and State. 鈥淪tate constitutional prohibitions and laws that prohibit use of public funds to support religious instruction generally do not have any exemptions and so should not be affected by Fulton.鈥�

The issue is relevant in , a case before a Maryland district court. The state excluded the religious school from a voucher program because the school鈥檚 handbook says it 鈥渟upports a biblical view of marriage鈥� and that 鈥淕od immutably bestows gender upon each person at birth as male or female.鈥� The school, which serves low-income students, said these statements don鈥檛 impact its admissions process, but the state still declined to admit it to the program.

The state is expected to submit a brief Friday requesting a decision in the case, with the plaintiff鈥檚 request expected in July.

Bindas, with the Institute for Justice, noted that the plaintiffs in the Maine case are arguing that families attending any religious school should be able to participate in a state鈥檚 school choice program. As it stands, Vermont could try to get around the appeals court鈥檚 decision by passing new legislation excluding religious schools because they teach students about doctrine or have a time for worship.

鈥淯sing public funds for religious instruction violates the religious freedom of taxpayers who are forced to subsidize faiths to which they do not subscribe,鈥� said Luchenitser, who has argued that the court should decline to hear the appeal in the Carson case.

Dave and Amy Carson kept their daughter Olivia at the Christian school she attends but that doesn鈥檛 participate in the tuition assistance program. The other plaintiffs in the case, Angela and Troy Nelson, wanted to send their children to a religious school, but instead sent their two children to a secular private school that accepts vouchers.

鈥淵ou either forgo the benefit,鈥� Bindas said, 鈥渙r you forgo the school that you think is best for your child.鈥�

In a broader sense, the Fulton decision shows the court continues to move toward a 鈥渕ore aggressive鈥� position in favor of religious rights, said Joshua Dunn, a political science professor at the University of Colorado-Colorado Springs.

鈥淭he reasoning of Espinoza 鈥� is hard to square with the 1st Circuit鈥檚 opinion,鈥� Dunn said, adding that if the court decides to hear the case, 鈥淢aine should be very worried.鈥�