Religion Goes to School
Terry H. Schwadron
Dec. 7, 2021
To those thinking the conservatives’ embrace of the Mississippi abortion law case was an anomaly before the Supreme Court, here comes another case this week with religious overtones.
Tomorrow, the court has agreed to hearing arguments on requiring Maine taxpayers to underwrite parochial school tuition in the state.
Indeed, the people bringing the challenge say that failing to pay parochial school tuition is religious discrimination.
There are a few wrinkles in the Maine law, but a couple of things stand out directly here as problematic.
First, of course, is the substance of the case itself, a notion that veers directly away from support of public, nonsectarian schools to tuition for religious schools, an idea that seems diametrically opposed to maintaining separation between church and state.
Secondly, unlike most cases about liberty, this one is aimed not at sheltering a minority from a takeaway of rights but specifically about taking money for public schools to support parochial schools.
As Vox News summarized, “Under this reasoning, there is no relevant difference between denying a public education to a Catholic student and refusing to pay for private religious education. ‘The times are different,’ the plaintiffs’ brief claims, ‘but the result is the same: denial of educational opportunity through religious discrimination.’”
It moves the battleground from whether religious conservatives can seek exemptions from individual laws to whether they can also demand that the public actively fund their faith, Vox noted.
The Drift toward Religious Rights
More broadly, this case follows last week’s hearing over the restrictive Mississippi abortion law by creating new social law that favors religious fealty over two centuries of attempting to maintain public rights.
Given the current conservative majority on the court and the various individual statements of the justices about the need for more protection for religious groups, we can expect a favorable ear among the justices for this appeal.
The case is called Carson v. Makin, It claims the state of Maine must spend public tax revenue to pay the private school tuition of some religious students. The briefs acknowledge that no one in Maine is prohibited from sending their children to a religious private school. The plaintiffs in this case already send at least one child to such schools.
The question is whether the Constitution requires the government and taxpayers to subsidize religious education.
As it happens, Maine has an unusual public school voucher program that requires rural localities where there is no public school to pay private school tuition in a program serving about 5,000 students statewide who otherwise have no access to education. Only “nonsectarian” schools are eligible for vouchers. Parents can still choose to send their children to a faith-based school but are not supposed to receive state funds to do so.
In its brief, the state of Maine argues that both plaintiff families in this case want the state to pay for tuition at schools that discriminate against LGBTQ students and teachers. One of the schools requires teachers to sign an employment agreement stating that “the Bible says that ‘God recognize[s] homosexuals and other deviants as perverted’” and that “[s]uch deviation from Scriptural standards is grounds for termination.’”
So, adding this up, we have religious faithful families who say there is a constitutional responsibility for the public to pay tuition to schools that support a legal-unconstitutional view of gender choice.
Hmm. Of course, individual Rights are at stake, but whose?
The New Justice
Before this year, it is not clear that the Supreme Court would even consider this case. Typically, issues over rights start with a perception that someone is being prohibited from doing something that they want to do.
In this case and in those that have been building to it, the rights discussion has been largely turned upside down. Recent cases before the Supreme Court have involved the question of mandating health coverage even if various services might include distribution of contraceptives, for example, or providing wedding cakes for gay marriage services, or the question of whether religious services might be exempt from mandates over covid precautions — cases generally defined as protecting religious activities otherwise being mandated.
The issue here is more assertive: The plaintiffs argue that Maine is discriminating by not funding religious school tuition for families who have other choices.
But as the echoes behind the abortion case hearing still reverberate, we’re seeing a rawer reality that a 6–3 conservative majority on the court can run the table by appealing to a need to press the law for more freedoms that favor the religious right than public interests.
Until last year, various decision had upheld cases concerning payments to parochial schools. In the Espinoza v. Montana case last year, Chief Justice John Roberts’ majority opinion held that Montana may not exclude religious institutions from a program that provides scholarships to private schools. That case did distinguish between funds that are about use and those about the nature of the school, that is that scholarships were seen in the same way as, say, school lunch money.
As we now see, as with abortion, there are more incremental steps coming that challenge any wall between church and state.
The bulk of the plaintiff’s brief argues that Maine’s system violates the Constitution’s general ban on laws “prohibiting the free exercise” of religion. There is that “prohibiting” word again, though there are no prohibitions being alleged here.
What we have instead is a bald attempt to stretch the law to support parochial schools.
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