By John A. Sparks

In 2017, the Supreme Court decided a case that involved a school playground resurfacing program provided by the state of Missouri. Trinity Lutheran School sought a state grant, which was generally offered to other schools, but Trinity was denied funding solely because it was a religious school. The Supreme Court found in favor of the school, saying that it had every right, under the free exercise clause of the First Amendment, to participate in a government benefit program without giving up its religious affiliation.

In 2020, the high court continued efforts to return the free exercise clause to the strength the Americans founders intended. The case was Espinoza v. Montana. Montana gave tax credits to donors who created scholarships for private schools, but the state refused to allow parents who received scholarships to put them toward tuition at religious schools. The Supreme Court found against Montana, saying that requiring a school “to divorce itself from any religious control or affiliation” in order to obtain the scholarship monies “deters or discourages the exercise of First Amendment rights.”

Now the new decision in Carson v. Makin, the third case in that trilogy of cases, again finds that a state-instituted program (this time in Maine) which “operates to identify and exclude otherwise eligible schools on the basis of their religious exercise” violates the free exercise clause of the First Amendment.

Here are the details: The state of Maine is the most rural state in the union. In some school districts, that resulted in too few students to financially justify the existence of a public secondary school. Consequently, Maine permitted those districts to provide a program of “tuition assistance” to families in those locations. One of the options open to parents was to choose a private school to which the publicly provided tuition monies would be sent. The Carson family and another family chose religious schools to which to send their children (Bangor Christian Schools and Temple Academy) because they lived in districts where no public secondary school existed and desired religious instruction as part of their children’s education.

Prior to 1981, the choice of a religiously affiliated school would have presented no problem, but in that year the state attorney general ruled that the practice could not continue because it amounted to “an establishment of religion.” The Maine legislature responded by requiring that tuition assistance payments, from then on, only go to “nonsectarian” schools, meaning those without a religious affiliation. The Carsons brought legal action and the case, after making its way through the lower courts, ended up before the U.S. Supreme Court.

In a 6-3 decision, the high court sided with the families and against the state of Maine. The court first addressed Maine’s claim that if tuition were to be paid to the religious schools, that would amount to an “establishment of religion.” The court pointed out that in a case decided in 2002, which involved a Cleveland, Ohio voucher program, it had already held that a benefit program under which private citizens “direct government aid to a religious schools wholly as a result of their own independent and private choice does not offend the Establishment Clause.” The court here once again recognized that indirect aid to religious schools, selected by parents, clearly was not equivalent to “an establishment of religion,” by which the founders meant a tax-supported, state-mandated church.

The majority opinion, written by the Chief Justice John Roberts, went on to identify the court’s cardinal principle that “a state violates the free exercise clause when it excludes religious observers from otherwise available public benefits.” Drawing on the Trinity playground and the Montana scholarship cases, Roberts says that though a state need not subsidize private education, if it does, it cannot disqualify some schools from those benefits because they are religious.

The Roberts’ opinion also disputes the claim by Justice Breyer that the court’s holding in favor of the families and against Maine runs contrary to “governmental neutrality” on religious matters. As Roberts points out, “there is nothing neutral about Maine’s program. The state pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.”

Maine’s exclusionary statutory language, which banned state aid to religious schools, harkens back to the “Blaine Amendments” named after Congressman James G. Blaine. At its height, over 30 states prevented public aid to “sectarian” schools. Originally, these provisions targeted Catholic schools, but more recently, they have targeted any religious school. The Roberts’ opinion effectively puts the final “nail in the coffin” of those types of provisions. States cannot disqualify private religious schools from being among the recipients of these public funds intended for education.

These three cases, because they widen the spectrum of parental educational choice, are especially important. Regrettably, many public schools and their boards have allowed their schools to drift into instruction that parents increasingly find runs counter to their convictions and values. This decision recognizes that parents desire and ought to have real educational alternatives.

Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College and a Fellow in the Institute for Faith and Freedom. He is a member of the state bar of Pennsylvania and a graduate of Grove City College and the University of Michigan Law School. Sparks writes regularly for the Institute on Supreme Court developments.