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WASHINGTON — The Supreme Court ruled on Tuesday that Maine may not exclude religious schools from a state tuition program, the latest decision by a conservative majority that has increasingly favored the role of religion in public life.
The vote was 6 to 3, with the court’s three liberal justices in dissent.
Chief Justice John G. Roberts Jr., writing for the majority, said the ruling did not require states to support religious education. But states that choose to subsidize private schools, he added, may not discriminate against religious ones.
In separate dissents, Justice Sonia Sotomayor and Justice Stephen G. Breyer expressed dismay at the direction of the court in taking up matters of religion in the public sphere.
Justice Sotomayor said the decision was another step in dismantling “the wall of separation between church and state that the framers fought to build.”
The ruling was the latest in a run of victories for religious groups that has allowed a much larger role for religion in public life. Indeed, expanding religious rights has been a signature project of the court led by Chief Justice Roberts.
In just the past few years, the court has ruled that a different state program supporting private schools in Montana must include religious ones, that a 40-foot cross honoring soldiers who died in World War I could remain on state property in suburban Maryland, that the Trump administration could allow employers with religious objections to deny contraception coverage to female workers, that employment discrimination laws do not apply to many teachers at religious schools and that a Catholic social services agency in Philadelphia could defy city rules and refuse to work with same- sex couples who apply to take in foster children.
There are more cases on the horizon, including one involving whether a former high school football coach was entitled to pray on the 50-yard line after his team’s games, and claims of religious freedom are likely to prevail in those, too.
The case on Tuesday grew out of a lawsuit filed by two families in Maine who send or wanted to send their children to religious schools and were challenging an unusual program that requires rural communities without public secondary schools to arrange for students’ educations in one of two ways.
Local school districts can sign contracts with nearby public schools, or they can pay tuition at a private school chosen by parents so long as it is not religious.
One of the schools at issue in the case, Temple Academy in Waterville, Maine, says it expects its teachers “to integrate biblical principles with their teaching in every subject” and teaches students “to spread the word of Christianity.” The other, Bangor Christian Schools, says it seeks to develop “within each student a Christian worldview and Christian philosophy of life.”
In his dissent, Justice Breyer wrote that both schools “have admissions policies that allow them to deny enrollment to students based on gender, gender identity, sexual orientation and religion, and both schools require their teachers to be born-again Christians.”
Michael Bindas, a lawyer with the Institute for Justice, which represented the families challenging Maine’s program, said the court’s decision on Tuesday was a major step.
“Today’s decision makes clear, once and for all, that the government may not bar parents from selecting religious schools within educational choice programs,” he said.
Rachel Laser, the president of Americans United for Separation of Church and State, reacted to the decision with alarm. “The ultraconservative majority of the US Supreme Court continues to redefine the constitutional promise of religious freedom for all as religious privilege for a select few, she said. “The court is forcing taxpayers to fund religious education.”
The case, Carson v. Makin, No. 20-1088, was broadly similar to one from Montana decided by the court in 2020, Espinoza v. Montana Department of Revenue. In that case, the court ruled that states must allow religious schools to participate in programs that provide scholarships to students attending private schools.
Chief Justice Roberts, writing for the majority in the Montana case, said a provision of the state’s Constitution banning aid to schools run by churches ran afoul of the US Constitution’s protection of the free exercise of religion by discriminating against religious people and schools.
“A state need not subsidize private education,” he wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
But the Montana decision turned on the schools’ religious status, not their curriculums. There may be a difference, Chief Justice Roberts said, between an institution’s religious identity and its conduct.
“We acknowledge the point,” he wrote, “but need not examine it here.”
The new case from Maine resolved that open question.
In his majority opinion on Tuesday, Chief Justice Roberts rejected the argument that Maine should be free to try to replicate a public school experience, which does not include religious instruction. The private schools the state’s tuition program supports, he wrote, were themselves different from Maine’s public schools.
“To start with the most obvious, private schools are different by definition because they do not have to accept all students,” the chief justice wrote, adding that “the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools.”
In dissent, Justice Breyer wrote that the main goal of a public school is to offer a “civic education.”
“To play that role effectively, public schools are religiously neutral, neither disparaging nor promoting any one particular system of religious beliefs,” he wrote, adding that the court had “consistently required public school education to be free from religious affiliation or indoctrination.”
Chief Justice Roberts responded that even a rural state like Maine has other options if it does not wish to subsidize religious education. “It could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning and partial attendance, or even operate boarding schools of its own,” the chief justice wrote.
But once it decides to aid private schools, he wrote, it cannot exclude religious ones.
In dissent, Justice Breyer wrote that the majority had paid too little attention to the First Amendment’s establishment clause, which prohibits government establishment of religion. The court’s decision, he wrote, could prompt religious strife in a nation with more than 100 religious groups.
“Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education,” Justice Breyer wrote. “Taxpayers may be upset at having to finance the propagation of religious beliefs that they do not share and with which they disagree.”
Justices Sotomayor and Elena Kagan joined all or most of Justice Breyer’s dissent.
In her dissent, Justice Sotomayor wrote that states that do not wish to support religious education may have to cut back on valuable programs.
“If a state cannot offer subsidies to its citizens without being required to fund religious exercise, any state that values its historic anti-establishment interests more than this court does will have to curtail the support it offers to its citizens,” she wrote. “ With growing concern for where this court will lead us next, I respectfully dissent.”
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