Maine cannot ban aid to religious schools, top US court rules

The US Supreme Court has allowed more public funding of religious entities, ruling in favour of two Christian families who challenged a Maine tuition assistance programme that excluded private schools that promote religion.

In a six-to-three decision, the justices overturned on Tuesday a lower court ruling that had rejected the families’ claims of religious discrimination in violation of the US Constitution, including the First Amendment protection of the free exercise of religion.

It was the latest in a series of decisions in recent years expanding religious rights.

The court’s conservative justices were in the majority in the ruling, authored by Chief Justice John Roberts, with its liberal members in dissent.

The decision builds upon the Supreme Court’s 2020 ruling in a case from Montana that paved the way for more taxpayer dollars to flow to religious schools.

Maine provides public funds to pay for tuition at private high schools of a family’s choice in some sparsely populated areas of the northeastern state that lack public secondary schools.

The schools receiving this tuition assistance under the programme must be “nonsectarian” and are excluded if they promote a particular religion and present material “through the lens of that faith”.

The ruling offered the latest example of the Supreme Court, with its increasingly assertive conservative majority, making the expansion of expanding religious liberty a high priority. The justices have been receptive to claims made by plaintiffs – often conservative Christians – of government hostility towards religion including in the educational context.

The Maine case – titled Carson v Makin – tested two different provisions of the First Amendment: a clause that prohibits the government from establishing a religion and another that guarantees the free exercise of religion.

“Maine has chosen to offer tuition assistance that parents may direct to the public or private schools of their choice,” Roberts wrote.

“Maine’s administration of that benefit is subject to the free exercise principles governing any public benefit program – including the prohibition on denying the benefit based on a recipient’s religious exercise.”

For her part, liberal Justice Sonia Sotomayor argued in a dissenting opinion that the top court has “for many decades understood the Establishment Clause to prohibit government from funding religious exercise”.

“Finally, the Court’s decision is especially perverse because the benefit at issue is the public education to which all of Maine’s children are entitled under the State Constitution,” Sotomayor wrote.

“As this Court has long recognized, the Establishment Clause requires that public education be secular and neutral as to religion.”

In a separate dissent, Justice Stephen Breyer – who is retiring at the end of the court’s current term – said Maine was well within its right to withhold funding from schools that promote religion.

“Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children the religiously neutral education required in public school systems,” Breyer wrote.

“And that, in significant part, reflects the State’s anti-establishment interests in avoiding spending public money to support what is essentially religious activity. The Religion Clauses give Maine the ability, and flexibility, to make this choice.”

The American Civil Liberties Union (ACLU), a civil rights advocacy group, and its Maine chapter denounced the court’s decision on Tuesday, calling it the “opposite of true religious freedom”.

“Maine’s policy to avoid government-funded religious education is rooted in our nation’s historical commitment to the separation of church and state,” Daniel Mach, director of the ACLU programme on freedom of religion and belief, said in a statement.

“Today’s decision, like others in recent years, undermines this vital protection by forcing taxpayers to support religious instruction and indoctrination.”