As past is often prologue, oral arguments in the case of Carson v. Makin yesterday before the Supreme Court stand to amount to little more than a nearly two-hour rhetorical exercise.

As in Trinity Lutheran Church of Columbia, Inc., v. Comer, decided in 2017, and Espinoza v. Montana Department of Revenue, decided in 2020, this case concerns the application of state funding to religious schools. In Trinity Lutheran, the Supreme Court overturned a lower-court ruling barring state money in Missouri from going to the renovation of a playground at a preschool administered by a church; in Espinoza, the Supreme Court overturned a lower-court ruling barring religious schools from participating in a scholarship program in Montana that sent children to private schools with funding from tax credits.

In Carson, the U.S. District Court for the District of Maine, followed by the U.S. Court of Appeals for the First Circuit, ruled that the state was on firm ground in restricting parents in remote school districts of Maine without high schools to use funding from the state’s so-called town tuitioning program only for sending their children to public schools in other districts or nonsectarian private schools. Lawyers from the libertarian Institute for Justice, which also represented plaintiffs in Espinoza, contended that Maine’s regulations violate the individual freedoms of parents who want a religious education for their children.

This program in Maine dates back to 1873. Over half of Maine’s school districts are too small to host high schools. Vermont has a similar program dating back to 1869 while New Hampshire introduced its own version just five years ago.

In writing for the 5-4 majority in Espinoza, Chief Justice John Roberts made clear that he and his fellow conservative justices view such limitations as unconstitutional. “A state need not subsidize private education,” Roberts wrote. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The official position of Maine is that religious schools may, in fact, participate in the town tuitioning program so long as they refrain from mandating religious instruction. The distinction is one between “status” and “religious use.”

“To be clear, religious organizations that are willing to provide education comparable to a public education are eligible to receive public funds through Maine’s tuition program,” wrote A. Pender Makin, commissioner of the Maine Department of Education, in her respondent brief for the case. “In excluding sectarian schools, Maine is declining to fund a single explicitly religious use: an education designed to proselytize and inculcate children with a particular faith.”

To the editorial board of The Wall Street Journal, this distinction amounts to hairsplitting. “In practice, this distinction between ‘status’ and ‘use’ falls apart,” claimed the Journal. “Think about it: Maine is happy to fund tuition at an evangelical school, as long as nothing evangelical is taught. Hmmm. How is this supposed to work for a faith that sacralizes everyday life? When rating the religiosity of a Jewish or Islamic school, will Maine demand to know whether prayer is allowed or if students may bring BLTs for lunch?”

An article in Time addressed this distinction: “The families argue it’s unfair that some schools with religious traditions, such as weekly chapel meetings are allowed, to qualify for Maine’s program, giving the example of the private, all-boys Cardigan Mountain School in New Hampshire, which Chief Justice John Roberts’ son attended and which describes itself as ‘a nonsectarian educational institution founded in the Judeo-Christian tradition.’”

Curricula aside, a major issue is discrimination against members of the LGBTQ community. The two schools in Maine at the center of Carson—Bangor Christian and Temple Academy—do not permit members of the LGBTQ community on their staffs. Nor do these schools allow LGBTQ students to enroll. The same holds for children of members of the LGBTQ community.

According to the article in Time, Jennifer Pizer, law and policy director for Lambda Legal, an advocacy organization for LGBTQ rights, a victory for the plaintiffs would be disastrous. “We’re looking at potentially another wrecking ball to the wall of separation between church and state,” Pizer said. “The fundamental notion that none of us should be required to pay for other people’s practice of religion is about as basic as it gets, and yet we’re seeing, in these education contexts, that notion flipped on its head.”

What has gone unmentioned by the Journal, the lawyers from the Institute for Justice speaking for the plaintiffs, or the justices in oral argument is the practice of several other secular countries, such as Holland, France, Belgium, and Sweden, which allow parents to send their children to religious schools with public funding. This error of omission, however, hardly seems accidental, as such countries require considerable regulation of curricula and make specific stipulations about teacher qualifications, all of which conflict with the libertarian perspective basic to the argument of the plaintiffs.

The only citation of one of these foreign countries came from Justice Stephen Breyer, who joined the minority in Espinoza and will likely do so in Carson. Breyer, a noted Francophile, mentioned France as a country that allows parents to send their children to religious schools with public funding, but the United States is not France.

“[T]he religious clauses are there to prevent the religious wars,” Breyer said in response to the argument made by Michael Bindas, the Institute for Justice lawyer representing the plaintiffs in oral arguments. “You teach your religion. I teach mine. Okay? And to our children. Now, when you get to education, the route you're taking is not unknown. France takes that route. And you could say, well, the—the state will pay all the religious education, as well as all the secular, and treat everybody alike. We've never taken that really. The opposite is none. Don't pay the priest's salary and don't pay the teaching of devotion and some—you know, the teaching of actually devotional activity. And then there's the middle, where you say give the money to the parents and let them choose. Okay. So what this is, is it's closer to the second—I mean it's closer to the first, the state's going to pay for it. And the reason I think we've stayed out of that is because we have too many religions, 60, 70, and they're going to get into too many arguments with each other about everything under the sun, you know, and you start getting into arguments about whether the—it should be like this way in the window or the other way in the window or this is the kind of thing to teach or that. It's really awful. I mean, I'm not saying the arguments are bad. I understand them. But you get the state in as the arbitrator or the courts, and you're right in the middle of religious activity.”

Breyer's concerns indeed go back to the worries of the framers of the Constitution, set on sparing the United States the religious conflicts that had plagued Europe. However well put, Breyer's argument is unlikely to dent the thinking of his conservative fellow justices, given the vigor of their opinion in Espinoza. With Justice Amy Coney Barrett having taken the place of Justice Ruth Bader Ginsburg, Carson stands to be a 6-3 ruling in favor of the plaintiffs. In the wake of such a decision, many rural states under pressure from religious groups stand to introduce their town tuitioning programs.

Samuel E. Abrams
Director, NCSPE
December 9, 2021