Tuesday, June 21, 2022

Court Says Maine's Tuition Assistance Program Violates Free Exercise

The Supreme Court ruled today that Maine's tuition assistance program violates the Free Exercise Clause, because it limits payments to "nonsectarian" schools. At the same time, the Court said that the State's antiestablishment interests didn't justify the limit, effectively eliminating any "play in the joints" between the two religion clauses . . . or at least limiting Locke v. Davey to its facts.

The ruling follows the Court's trendline in recent years expanding the Free Exercise Clause, privileging free-exercise concerns over antiestablishment concerns, and limiting any play in the joints.

The case, Carson v. Makin, tested Maine's tuition assistance program for parents of children in districts with no public secondary schools. Maine provides tuition for those parents to send their children to qualified, "nonsectarian" private schools. The State defines "a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith."

The Court said the program violates the Free Exercise Clause, because it denied participation in a public program because of a school's religion. Chief Justice Roberts wrote for the majority that the Court's opinions in Trinity Lutheran and Espinoza directly answered the question. The Court rejected an argument that unlike the programs in Trinity Lutheran and Espinoza, Maine's prohibition applied to the schools' use of public funds (and not their status as religions, or religious). It backed away from the use-status distinction, and wrote that "those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause." It also rejected an argument that by promising a public education, Maine was necessarily promising a nonsectarian education. The Court said that nothing in Maine's law defines public education this way (as nonsectarian), that Maine funds nonsectarian private schools that vary in other ways from its standard public education, and that Maine's mere defining "public education" to include only "nonsectarian" schools invites States simply to define their way around free-exercise concerns.

The Court went on to hold that the State's antiestablishment interests were insufficient to justify its free-exercise violation. The Court said that Maine's program operated like the voucher program upheld in Zelman (where the Court upheld parents' use of public vouchers for religious schools, because parents' choices broke the chain between the government and religion), and, as a result, "Maine's decision to continue excluding religious schools from its tuition assistance program . . . thus promotes stricter separation of church and state than the Federal Constitution requires."

Justice Breyer dissented, joined by Justice Kagan and (mostly) Justice Sotomayor. He argued that Maine's program falls within the play in the joints in Locke v. Davey, that the Court's ruling expands free-exercise interests at the expense of antiestablishment concerns, and that the Court's ruling unduly limits the play in the joints. He also argued that the Court's approach would contribute to religious strife and conflict.

Justice Sotomayor wrote her own dissent, pointing out how the Court's approach has evolved, even over just the last five years:

In 2017, I feared that the Court was "lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment." Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.


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