The Court’s conservative majority wants to redefine what constitutes religious “discrimination”
12/8/21, Ian Millheiser
At an oral argument held Wednesday morning, all six members of the Supreme Court’s Republican-appointed majority appeared likely to blow a significant new hole in the wall separating church and state.
The case is Carson v. Makin; the question is whether the state of Maine is required to subsidize religious education; and the majority’s answer appears, at least under certain circumstances, to be yes.
Under current law, as Justice Elena Kagan noted during Wednesday’s argument, the question of whether to fund religious education is typically left up to elected officials. Maine’s legislators decided not to do so when they drafted the state’s unusual tuition voucher program that’s at issue in Carson, and is meant to ensure that children in sparsely populated areas still receive a free education.
The overwhelming majority of Maine schoolchildren attend a school designated by their local school district. But a small minority — fewer than 5,000 students, according to the state — live in rural areas where it is not cost-effective for the state to either operate its own public school or contract with a nearby school to educate local students. In these areas, students are provided a subsidy, which helps them pay tuition at the private school of their family’s choice.
The issue in Carson is that only “nonsectarian” schools are eligible for this subsidy. Families may still send their children to religious schools, but the state will not pay for children to attend schools that seek to inculcate their students into a religious faith.
All six of the Court’s Republican appointees appeared to think that this exclusion for religious schools is unconstitutional — meaning that Maine would be required to pay for tuition at pervasively religious schools. Notably, that could include schools that espouse hateful worldviews. According to the state, one of the plaintiff families in Carson wants the state to pay for a school that requires teachers to sign a contract stating that “the Bible says that ‘God recognize[s] homosexuals and other deviants as perverted’” and that “[s]uch deviation from Scriptural standards is grounds for termination.’”
In the likely event that these plaintiffs’ families prevail, that will mark a significant escalation in the Court’s decisions benefiting the religious right — even if the Court limits the decision narrowly to Maine’s situation. Shortly after Justice Amy Coney Barrett’s confirmation gave Republicans a 6-3 supermajority on the Supreme Court, the Court handed down a revolutionary decision holding that people of faith may seek broad exemptions from the laws that apply to anyone else. But the Court has historically been more reluctant to require the government to tax its citizens and spend that money on religion.
That reluctance may very well be gone.
The purpose of Maine’s exclusion for sectarian schools, according to Christopher Taub, the lawyer given the unfortunate task of defending that exclusion against a hostile Supreme Court, is to ensure that the state remains “neutral and silent” on questions of religion.
For many years, the Constitution was understood to require this kind of neutrality. As the Court held in Everson v. Board of Education (1947), “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”
Everson was effectively abandoned by the Court’s decision in Zelman v. Simmons-Harris (2002), in which a 5-4 Court upheld a pilot program in Ohio that provided tuition vouchers funding private education — including at religious schools. But Zelman, as Kagan pointed out today, merely held that states “could” fund religious education if they chose to do so. Nothing in that decision prevents states from adopting the same neutral posture toward religion that was once required by cases like Everson.
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On Wednesday, however, several members of the Court’s Republican-appointed majority questioned whether religious neutrality is even possible, and suggested that Maine’s efforts to remain neutral on questions of religion are themselves a form of discrimination against people of faith.
Chief Justice John Roberts, for example, proposed a hypothetical involving two private schools. One of these schools teaches its religious beliefs openly and explicitly, and it also teaches a particular set of religious values in the process. The other school might eschew explicit references to God or to a holy text, but it teaches a different value system that is motivated by religious beliefs. If the state funds the latter school but not the former one, Roberts asked, why is it not drawing “distinctions based on doctrine”?
Justice Samuel Alito, meanwhile, offered the Fox News version of Roberts’s argument. Maine’s law, Alito noted, does not contain explicit exemptions for private schools that teach white supremacy or critical race theory, but it does explicitly exempt religious schools from its tuition program. The implication was that Maine is discriminating against religion and in favor of critical race theory.
Justice Brett Kavanaugh, meanwhile, offered the most direct version of this argument that neutrality toward religion is the same thing as discrimination. “Discriminating against all religions” is still unlawful discrimination, Kavanaugh told Taub — a position that is difficult to square with the text of the First Amendment, which prohibits laws “respecting an establishment of religion.”
It should be noted that Roberts and Kavanaugh are, while both very conservative, the most moderate members of the Court’s six-justice conservative bloc. So if both of these justices vote against Maine, it’s hard to imagine how the state finds five votes to sustain its law.
That said, there is an off chance that the Court will dismiss this case. Early in the oral argument, Justice Clarence Thomas pointed to the fact that his Court may not have jurisdiction to hear the Carson case.
Under Lujan v. Defenders of Wildlife (1992), federal courts may not hear a lawsuit unless the injury alleged by the plaintiffs can be “redressed by a favorable decision.” But, according to Maine, both of the plaintiff families want to send their children to schools that might refuse state funds even if such funds are offered to them — because Maine forbids all entities that receive state subsidies from discriminating on the basis of sexual orientation.
Even if the Court were to order Maine to provide tuition subsidies to religious schools, in other words, the plaintiffs in Carson might wind up with nothing, because their preferred schools could choose to keep their anti-LGBTQ policies intact instead of receiving state subsidies.
Nevertheless, even if the Court does ultimately decide to dismiss the case for lack of jurisdiction, that will only delay a reckoning over public funding for religious institutions. Eventually, some lawyer will find a school that is willing to accept state funding. And when that happens, there will likely be at least five votes on the Supreme Court to hand that lawyer a victory.
The justices are likely to place some limits on its decision in Carson, but it’s not yet clear how they will justify those limits
Although the six conservative justices showed little sympathy for Maine’s position — or for existing law — on Wednesday, some of them did suggest that there should be some limits on a decision forcing states to fund religion.
Roberts, for example, suggested that he might strike down a program that gave money directly to religious institutions in order to fund religious programs, rather than providing tuition grants to parents who then turn that money over to a religious school. Suppose that a state has a program that funds building construction at private schools, Roberts suggested at one point, but that also provides that the money cannot be used to build a chapel. He appeared to be suggesting that such an exclusion for chapel construction is permissible.
Similarly, Kavanaugh asked Michael Bindas, the lawyer challenging Maine’s program, whether religious families are entitled to tuition vouchers merely because their state funds ordinary public schools. Bindas denied that tuition vouchers are required under these circumstances, pointing to a line in Espinoza v. Montana Department of Revenue (2020) stating that “a State need not subsidize private education.”
But it’s hard to draw a principled line between a Court decision requiring Maine to fund religious education as part of its existing private school tuition program and a decision requiring all states with a public school system to fund religious education.
In his brief, Bindas argues that policies that require religious families to “choose between their religious beliefs and receiving a government benefit” are unconstitutional. But if the Constitution does not permit states to force families to choose between receiving a free education and a religious one, then then it’s unclear why this rule wouldn’t threaten any public school system.
Traditional public education, where students attend a government-run school for free, is a government benefit. All families who send their children to private, religious schools choose to forgo this government benefit. So, under the rule articulated in Bindas’s brief, every state may be required to pay for private tuition at religious schools.
In any event, the Court has previously drawn unprincipled lines that are difficult to square with legal texts and existing doctrines. So if five justices are bothered by the possibility that ordinary public school districts may be required to fund religious education, they could simply declare that such a thing is not required and leave it at that. Proponents of a wall of separation between church and state can take some minor comfort in that fact.
At the very least, however, the Court appears likely to hand down a transformative decision rethinking much of its approach to religion — and to force at least some states to fund religious education in the process.