On Tuesday, the Supreme Court struck down a Maine law that excluded most religious private schools from a voucher program in place at similar secular schools. The 6-3 decision in Carson v. Makin is an important victory for the constitutional principle that the government cannot discriminate on the basis of religion. It can also help open up valuable opportunities for parents and students, especially the disadvantaged.
In 2020, the Supreme Court ruled in Espinoza v. Montana Department of Revenue that a state-run voucher program cannot exclude religious schools simply because of their “status” as religious institutions. As Chief Justice John Roberts reiterated in his opinion in court on Tuesday, a state cannot “deny public benefits otherwise available to religious organizations” simply because they are religious.
In his dissenting opinion, Breyer argues that the majority opinion in Carson might favor “religious conflict”. But it can actually reduce such conflicts.
Roberts also noted that discrimination based on religion allegedly violates the clause protecting the free exercise of religion in the First Amendment, and cannot pass judicial scrutiny — that is, be considered constitutional — if it does. advance “the highest interests” and is “narrowly geared to the pursuit of those interests.” For example, it would surely be unconstitutional for a state to grant welfare benefits to Christians while denying them to otherwise eligible lay people. Although the state may choose not to establish welfare programs in the first place, if it does establish them, recipients may not be discriminated against on the basis of religion. The same logic applies to tuition cheques.
Until now, the state of Maine has subsidized the cost of private schools offering the equivalent of a secular public school curriculum for the approximately 5,000 children who live in districts (school administrative units, in Maine parlance) too sparsely populated to support their own public school. . However, Maine refuses to subsidize attendance at private schools with a religious curriculum in these areas, even though they have otherwise complied with all applicable state laws.
Defenders of the Maine voucher program, including Judge Stephen Breyer in his dissenting opinion, argued that it was not a case of religious discrimination because the program did not exclude schools affiliated with the religion as such, but rather only those that are “sectarian” – which the state Department of Education defines as an institution which, “in addition to teaching academic subjects, promotes the faith or belief system to which it associates with and/or presents the material taught through the prism of that faith”.
This legal theory is known as the “status-use” distinction. He argues that while the government cannot discriminate against institutions on the basis of their religious “status”, it can do so on the basis of potential “religious use” of resources that the state might bestow upon them.
This distinction makes little sense, especially when it comes to schools, and the court was right to reject it. The First Amendment clearly protects not only religious belief and religious affiliation, but also the “freedom exerciseof religion (emphasis added). The word “exercise” suggests that people should be free to act on their faith, including trying to promote it. In practice, almost any religious school worth its salt will promote “the faith or belief system with which it is associated”, at least to some extent.
The shortcomings of the status-use distinction become clear if we consider what it would mean in other contexts. So if the state had passed a law that extends social benefits to followers of all religions but denies them to those who could “use” some of the money to “promote” their faith, just about anyone which court would strike that down as unconstitutional discrimination. on the basis of religion (especially if the recipients remained free to “use” the funds to promote secular causes).
The same logic applies here. Breyer’s dissent argues that the state merely ensures that participating private schools provide the equivalent of a public education. But, as Roberts notes, the Maine curriculum allows participating private schools to differ from public schools in many ways, including having wildly divergent curricula. Only “sectarian” schools are systematically excluded.
Under Tuesday’s decision, the state remains free to restrict vouchers to schools that do not meet school standards that also apply to religious and secular schools — even if those standards run counter to the beliefs of some between them. For example, recipient schools may need to teach students the theory of evolution despite the fact that some religious groups reject it. It could also prohibit funding for schools that discriminate on the basis of race, gender and sexual orientation, even though some religious traditions advocate these practices.
Some argue that any public assistance to religious schools violates another part of the First Amendment – the Establishment Clause, which prohibits the state from creating an “established” church. But non-discrimination between religious and secular institutions in no way privileges a particular faith, nor does it imply state endorsement of a faith’s religious beliefs or coercion to adhere to a certain faith. Parents who do not want their children to attend a religious school can simply choose a secular option.
The conservative majority on the Supreme Court has not always always supported the principle of religious non-discrimination. Most blatantly, he upheld President Donald Trump’s “travel ban” policy targeting migrants and refugees from Muslim countries on the theory that non-discrimination constraints do not apply to travel restrictions. immigration to the same extent as other policies. But the right way to deal with this inconsistency is to end constitutional double standards in immigration policy, not to allow discriminatory policies elsewhere.
In addition to upholding an important constitutional principle, Carson v. Makin is a potential boon for poor and disadvantaged children. Social science research indicates that the choice of private school is often particularly valuable for poor and minority children, and that some religious schools – notably Catholic schools – are particularly adept at improving the performance of disadvantaged students. You don’t have to endorse the religious doctrines of these schools (as an atheist, I don’t myself) to recognize the valuable opportunities they offer.
The decision also offers an opportunity to transcend today’s increasingly divisive culture wars over education. In his dissenting opinion, Breyer argues that the majority opinion in Carson might favor “religious conflict”. But it can actually reduce such conflicts. Red and blue states are increasingly seeking to enforce uniform state-sponsored dogma through their public education systems. School choice that includes a wide range of religious and secular options allows dissenters to go their own way and creates valuable competition that parents can take advantage of. Tuesday’s Supreme Court ruling will help promote such beneficial diversity and competition.
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