Public Funding of Religious Schools Will Face Supreme Scrutiny

(CN) — Among nine cases added to the calendar in a final list of orders before summer break, the Supreme Court agreed Friday to decide what will likely be a landmark case on public funding of religious schools.

The court agreed to hear challenge to a Maine program that provides tuition reimbursement for secular private schools but not for religious schools. The First Circuit approved the program back in October, saying it didn’t violate the free exercise of religion.

Leslie Davis Hiner, vice president of the advocacy group EdChoice, said in an interview that the decision will likely have a widespread impact inasmuch as roughly half the states have tuition voucher programs of some sort.

The case has already drawn amicus briefs from Christian, Jewish and Islamic organizations, as well as a number of conservative groups.

Arguments before the high court will undoubtedly shine a spotlight on the court’s newest justice, Amy Coney Barrett, who attended a religious high school and who served on the board of a private Christian school that maintains an anti-homosexual stance. At least three of Barrett’s children attended the school, which apparently receives tuition-voucher payments similar to those at issue in the Maine case.

Maine is a rural state, and the majority of its school districts don’t have their own high school. As a result, it allows parents to apply for tuition reimbursement after enrolling their children in a nearby public or private school of their choice — so long as the school isn’t religious. 

Three families who want to send their children to Christian schools filed the suit, claiming that Maine was infringing on their freedom of religion. 

The case was prompted by two recent Supreme Court decisions that suggested the court’s view of the issue was evolving.

In 2017, the high court ruled that a Missouri subsidy for resurfacing playgrounds at preschool and daycare facilities couldn’t be denied to a church-run preschool. And last June, the court said a Montana program of tax credits for people who donate to private-school scholarships couldn’t exclude religious schools. 

But the First Circuit said there was a big difference between religious status and religious activities. Writing for a unanimous three-judge panel, U.S. Circuit Judge David Barron said the Missouri and Montana programs denied subsidies to schools simply because of their status as being owned by a church — regardless of whether the education had any religious content. 

By contrast, the Maine program denies subsidies only if the school’s educational program is explicitly religious. 

“Sectarian schools are denied funds not because of who they are but because of what they would do with the money — use it to further the religious purposes of inculcation and proselytization,” the Obama-appointed Barron wrote. 

Of the two schools at issue in the Maine case, one “has a mission of ‘instilling a biblical worldview’ in its students, with religious instruction ‘completely intertwined’ in its curriculum and the Bible as its ‘final authority in all matters,’” Barron noted. 

The other “provides a ‘biblically-integrated education’ and has an educational philosophy ‘based on a thoroughly Christian and biblical worldview,’” Barron added. And both schools refuse to hire teachers who are gay. 

The First Circuit concluded that Maine wasn’t penalizing the parents or the schools for being religious; it was simply declining to subsidize religious instruction. The decision was joined by former Supreme Court Justice David Souter, a George W. Bush appointee, as well as U.S. Circuit Judge Bruce Selya, a Reagan appointee.

The First Circuit ruling set up a conflict between the circuits, usually a key reason that the Supreme Court agrees to hear a case. The Sixth Circuit and the 10th Circuit have struck down programs that exclude religious schools from reimbursement programs. On the other hand, the Vermont Supreme Court upheld such an exclusion.

The court’s agreement to hear the Maine case comes on the heels of another religious-rights case, in which the court ruled unanimously on June 17 that Philadelphia cannot require a Catholic foster-care service to place children with gay families.

But on the same day the court agreed to decide the Maine case, it turned down an opportunity to hear another religious issue, declining to decide whether a Washington florist can refuse to create arrangements for a gay wedding.

Justices Thomas, Alito and Gorsuch voted the hear the florist case, but it takes four votes for the court to accept a lawsuit.

Per their custom, the justices did not issue any comment Friday in taking up the Maine case, David Carson v. A. Pender Makin.

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