Editor’s note: This is the June 21, 2022, update by the Vermont Independent Schools Association.
In a much-anticipated opinion the U.S. Supreme Court has ruled that public tuition funds cannot be withheld from religious schools. Chief Justice John Roberts wrote in the majority opinion:
Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance pay-ments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.
The case, Carson v. Makin, originated in Maine where the state operates a school choice tuitioning pro-gram for students from towns without a school, just as Vermont does. Since 1981, Maine limited payments only to “nonsectarian” schools. Though federal district and appeals courts upheld that require-ment, the U.S. Supreme Court has now reversed those decisions.
Carson v. Makin was decided on a 6-3 vote. Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett joined with Chief Justice Roberts. Justice Breyer wrote a dissent in which Justice Kagan joined. Justice Sotomayor wrote a separate dissent.
“Today the Court leads us to a place where separation of church and state becomes a constitutional violation,” wrote Justice Sotomayor. “If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.”
Legal observers expected the Supreme Court to address a distinction between the religious status of schools (on which the court ruled in 2020 in Espinoza v. Montana Dept. of Revenue) and the religious uses to which public funds might be put in those schools. Chief Justice Roberts dismissed this status-versus-use question in his Carson v. Makin opinion. Roberts wrote that in prior cases “we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.” And, he added, “Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism.”
Taken together with two previous religious education cases — Trinity Lutheran Church of Columbia Inc. v. Comer and Espinoza v. Montana Dept. of Revenue — the Supreme Court has comprehensively replaced the concept of an impermeable barrier between church and state derived from the First Amendment’s religious freedom language with a new concept in which the Free Exercise Clause is predominant.
This Supreme Court ruling is directly applicable to Vermont. Vermont’s tuition assistance program is very similar to Maine’s. Vermont will have to consider how to reconcile the Carson v. Makin opinion with the Compelled Support Clause in the Vermont Constitution: “no person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience.”
During the recently completed legislative session the Vermont Senate passed S.219 to permit tuition payments to religious schools while prohibiting discrimination on the basis of any protected classes at both religious and nonsectarian independent schools. The bill did not address the anticipated status-vs-use question. The House Education Committee chose not to consider that Senate bill, choosing to wait for the U.S. Supreme Court opinion. Consequently, the bill died when the legislative biennium ended.
From initial reading of the opinion, the language in S.219 stating “none of the public tuition will be used to support religious instruction, religious indoctrination, religious worship, or the propagation of religious views” appears to be prohibited by the Carson v. Makin ruling. It is unclear whether the S.219 language prohibiting discrimination by religious schools can be supported.