(CNN)The Supreme Court expressed deep skepticism Wednesday of a Maine school tuition assistance program that allows parents to use vouchers to send their children to attend public and private schools but excludes religious schools from the program.
Conservative justices such as Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh suggested that if a state makes the choice to provide a public benefit, it can’t exclude schools based on the fact that they teach the curriculum through the lens of faith.
“All they are asking for is equal treatment,” Kavanaugh said at one point, referring to the parents who want to use the funds for sectarian schools. “They’re saying don’t treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next door.”
Chief Justice John Roberts expressed concerns about the process Maine would go through in order to decide whether schools with a religious identity are going too far in “infusing their subjects with religion.” It was a sentiment shared by Justice Amy Coney Barrett. Gorsuch said that the court has made clear that “you don’t have to choose between receiving a public benefit and your faith.”
The case marks the court’s latest step to expand religious freedom, a trend bolstered by the addition of three of former President Donald Trump’s nominees and favored by Justice Samuel Alito, who claimed in a 2020 speech that “in certain quarters” religious liberty is “fast becoming a disfavored right.”
In Maine, parents living in some rural areas without a a local public school receive vouchers so that they can send their kids to public or private schools in other areas. The aim of the program, the state says, is to give students an education that is roughly equivalent to what they would have had if there had been a public school in their area.
To participate in the program, a private school must meet the requirements of Maine’s compulsory education law. The school district must pay tuition, up to a statutory limit, “at the public school or the approved private school of the parent’s choice” and the school must be “nonsectarian.”
A school’s affiliation with a religious institution does not, on its own, render a school ineligible. Instead, the state looks at the sectarian nature of the instruction and whether it “promotes the faith or belief system with which it is associated.”
On Wednesday, a lawyer for two sets of parents argued that the program infringes upon their rights because it bars them from using the funds to send their children to the religious school of their choosing.
To make their case, the parents point to past precedent such as a dispute from 2017 where the court determined that a state could not restrict funds for resurfacing playgrounds from a church-owned preschool based solely on its religious identity. In June 2020, the court held that a state could not exclude families and schools from participating in a student aid program because of a school’s religious status. Last term, the justices also ruled in favor of houses of worship in a series of emergency applications challenging Covid-19 restrictions.
Maine argues that the nonsectarian provision is necessary to ensure that public money is not funding religious education. While some religiously affiliated schools are allowed, the state draws the line if the educational material is presented through the lens of faith.
Religious organizations “that are willing to provide education comparable to a public education” are eligible to receive the public funds, Christopher Taub, Maine’s chief deputy attorney general, wrote in court papers, but the state declines to fund schools that offer “an education designed to proselytize and inculcate children with a particular faith.”
The Biden administration supports Maine in the dispute.
Lawyers for the parents say they are being unlawfully excluded because their children attend or wish to attend a sectarian school.
David and Amy Carson send their children to Bangor Christian, a school they say they selected because of its academic rigor and the fact it aligns with their religious beliefs. They seek to use the state funds to help pay the tuition. According to the court record, the school has a mission to instill a “Biblical world view” and it will not hire teachers who are LGBTQ.
Troy and Angela Nelson seek to send their child to Temple Academy, a religiously affiliated school but would need the tuition assistance to do so. The school, located in Waterville, Maine, expects its teachers, according to court papers, “to integrate Biblical principles with their teaching in every subject.”
“Maine’s sectarian exclusion discriminates against families who are eligible for the tuition assistance program and believe that a religious education is the best option for their child,” Michael E. Bindas, a lawyer for the Institute of Justice who is representing the parents, said in legal briefs. In court, he said the program amounts to discrimination “based on religion.”
The three liberal justices, led by Justice Stephen Breyer, expressed sympathy with Maine’s goal to bar the parents from using the funds for religious schools in order to keep government money from getting entangled with religious beliefs.
“Beware,” Breyer exclaimed at one point, if the government gets “too involved” in religion.
Breyer noted pointedly that some religious schools won’t hire LGBTQ teachers and he said that if public money flows into some schools they are going to find themselves in “all kinds” of disputes.
“I see a big push, with our 60 or 70 religions, towards keeping the state out of it,” he said.
Justice Elena Kagan said that the state “generally doesn’t have to subsidize the exercise of a right” and she said that the courts have always recognized a “play in the joints” between the Constitution’s Establishment Clause that bars government support of religion and its mandate allowing the free exercise of religion.
“Not everybody has to follow the same model,” she said, “and there is some amount of funding which is neither prohibited by the First Amendment nor commanded by the First Amendment.”
In the past, courts have drawn a distinction at times between a religious organization’s “status” or identity and how the schools will actually “use” the funds. A federal appeals court used that reasoning to uphold Maine’s program.
The 1st US Circuit Court of Appeals said that Maine’s program does not “bar schools from receiving funding simply based on their religious identity,” but, instead, bars the funds based on the “religious use” that the school would make of the funds.
Eric Rassbach, vice president at the Becket Fund for Religious Liberty who filed a brief in support of the parents, said the so called “status/use” distinction is meaningless in the context of religious schools.
“The court should reject the idea that to participate in a public benefits program, religious schools have to stop exercising their religion,” Rassbach told CNN.
While the court has in recent years trended to side with plaintiffs making religious liberty arguments, Alito has said the justices aren’t moving quickly enough.
In June, Alito wrote a furious opinion joined by Justices Clarence Thomas and Neil Gorsuch when he said that the court had not gone far enough in ruling in favor of a Catholic foster care agency that refused to work with same-sex couples as potential parents because the agency believes that marriage should be between a man and a woman.
Alito complained that his colleagues — while ruling unanimously in favor of the agency — had “emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”
Wednesday will be another chance to see what the justices are thinking.