By a 6-to-3 vote, the Supreme Court ruled today in Carson v. Makin that Maine violated the Free Exercise Clause by restricting its program of tuition assistance to private schools that are “nonsectarian.” Chief Justice Roberts wrote the majority opinion, and the three liberal justices dissented.
Maine, it turns out, is the most rural state in the nation, and more than half of its school districts don’t operate a high school. Maine has therefore enacted a program of tuition assistance that assists parents in such districts in paying for their children to attend a public or private high school. Private high schools that are eligible to receive payments must be accredited by a regional accrediting authority or approved by Maine’s Department of Education. Plus—and here’s the catch that led to the lawsuit—private schools are eligible only if they are deemed to be “nonsectarian.”
Maine imposed this “nonsectarian” requirement in 1981, in response to a state attorney general’s advice that its public funding of private religious schools violated the Establishment Clause. The Supreme Court rejected that reading of the Establishment Clause two decades later in Zelman v. Simmons-Harris but Maine did not drop the requirement. It turns out that nonsectarian does not simply mean not religious, as schools that are affiliated with churches or other religious institutions are eligible to take part, so long as they are deemed nonsectarian.
The Chief Justice invokes the general principle (which “we have repeatedly held”) that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” The Court’s recent rulings in Trinity Lutheran Church v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020), he explains, make this case easy. (See slip op. at 9-11.)
I’ll leave it to others to provide a more extensive summary of the Chief’s straightforward application of Trinity Lutheran and Espinoza. I’ll instead highlight a few points that I think have been overlooked in some of the early responses I’ve seen to the ruling.
First, contrary to some extravagant rhetoric in the dissents, the ruling in no way requires states to adopt voucher programs or other programs of tuition assistance. As the Chief explicitly states:
As we held in Espinoza, 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.”
Instead of its tuition-assistance program, Maine could choose to “expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own.”
Second, the Court’s ruling will have Maine’s tuition-assistance program operating as it did before 1981. Maine was hardly a hotbed of theocracy before then, so there is no reason to expect the Court’s decision to make it one. The fact that eligible schools must be accredited or approved cuts short the parade of horribles that some are trotting out.
Third, on what conceivable basis can the dissenters think it’s okay for state bureaucrats to rule that some religious schools are nonsectarian while others are not? (As the Chief pointed out in his majority opinion in Espinoza, the term sectarian has a “checkered tradition” as a code for bigotry against Catholics.)
I’ll also note that retired Supreme Court justice David Souter was part of the First Circuit panel that implausibly tried to distinguish away Trinity Lutheran and Espinoza (see slip op. at 11-18), and he thus provides an encouraging reminder of the much better line of Supreme Court picks that Republican presidents have made ever since President George H.W. Bush plucked him from obscurity in 1990 (with that line beginning, of course, with Bush’s own selection of Clarence Thomas in 1991).