Supreme Court hears arguments on religious discrimination regarding school choice

By Harold Hutchison and Kendall Tietz

The Supreme Court heard oral arguments Wednesday in Carson v. Makin, a case that carries national implications regarding religious freedom as it relates to government-run school choice programs.

The Supreme Court must weigh whether or not Maine’s program violates the Establishment Clause, Free Exercise Clause or Equal Protection Clause of the U.S. Constitution on the basis of religious discrimination. Michael Bindas, representing David Carson, told the justices that rural students in Maine have been barred from choosing a school that has “too much religious content,” if its curriculum is considered too “sectarian” in nature under state law.

The state of Maine has 260 school districts, but only 143 with public high schools, according to The Lion. As a result, the state has a program in place that pays students’ tuition in sparsely populated rural areas, so they can go to private school if public school is not an option.

Students in the state have used the school choice program to attend elite schools out of state or even outside the country, including Avon Old Farms, the Taft School and Miss Porter’s as long as they have no religious affiliation, according to court documents.

“Religious discrimination is sadly a common occurrence in our country, and the injustice in Maine is just one example,” Herzog Foundation Chairman Todd Graves said in a statement provided to the Daily Caller News Foundation. “Discriminating against students and schools solely based on religious identity is a clear and flagrant violation of every American’s right to freely exercise their religion.”

“The Establishment Clause that says, you know what, no longer can you attend — yes, we’ll continue to send you to Miss Porter’s or Avon Old Farms, but don’t you dare think about going to a Jewish day school or an Islamic school or your local Catholic parish’s school,” Michael Bindas, the attorney representing the Carson family, told the Justices, according to a transcript released by the high court.

“The constitutional injury here is the denial of the opportunity to even seek out religious education under this program,” Bindas said.

Diana Thomson, senior counsel for the Becket Fund, mentioned two similar cases that the Supreme Court has taken up in the past five years, which ruled the government can’t discriminate on enrollment in government programs over religious affiliation.

In 2012, Trinity Lutheran Church Learning Center applied for a grant from the state of Missouri to make its playground safer by using a surface made from recycled tires to replace a mixture of grass and gravel. Citing its religious affiliation, Missouri denied the school’s application.

“The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified,” Chief Justice John Roberts wrote in Trinity Lutheran Church of Columbia, Inc. v. Comer, a 7-2 ruling issued on June 26, 2017.

“The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character,” he added. “Under our precedents, that goes too far.”

Another tax credit program was in dispute during the 2020 Supreme Court case, Espinoza v. Montana Department of Revenue, which was enacted by the legislature and struck down by Montana’s Supreme Court, citing the state’s Blaine Amendment, which prohibited any schools operated by a “church, sect, or denomination,” from receiving state aid.

The nation’s highest court found the Blaine Amendments were “born of bigotry” and unconstitutional under the Free Exercise Clause, because they were often used to exclude religious institutions from public programs receiving government funding.

“A school, concerned about government involvement with its religious activities, might reasonably decide for itself not to participate in a government program,” Chief Justice Roberts, wrote for the 7-2 majority. “But we doubt that the school’s liberty is enhanced by eliminating any option to participate in the first place.”

“That’s the same thing that’s going on here,” Thomson told the DCNF. “The situation is Maine just hasn’t gotten the message yet, so we’re back at the Supreme Court asking them to clarify the law.”

Maine is trying to make the distinction that you can exclude religious schools because they use the funds in a religious way, Thomson explained.

“But to say you’re fine with a Catholic school, but not fine with those schools teaching Catholic theology to those students is splitting hairs and it doesn’t make discrimination constitutional,” she added. “I’m hopeful the Supreme Court will do the same thing it’s done in the last five years and say it is unconstitutional to exclude religious groups, religious schools, from this program.”

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