The Supreme Court appeared ready Wednesday to rule that religious schools can't be excluded from a Maine program that offers tuition aid for private education.
The court's six conservative justices seemed largely unpersuaded, after nearly two hours in the courtroom, by Maine's arguments that the state is willing to pay for the rough equivalent of a public education, but not religious inculcation.
The court's three liberal justices signaled they were more aligned with the state's arguments.
The case is the latest test of religious freedoms for a Supreme Court that has favored faith-based discrimination claims.
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Justice Brett Kavanaugh used an example of neighbors, one choosing a secular private school and the other opting for a religious school for their children. The first family gets the state aid, but not the second.
“That's just discrimination on the basis of religion at the neighborhood level,” Kavanaugh said.
The parents argue that their exclusion from the state program violates their religious rights under the Constitution. Teacher unions and school boards say a ruling for the parents would be a blow to public education.
In largely rural Maine, the state allows families who live in towns that don’t have public schools to receive public tuition dollars to send their children to the public or private school of their choosing. The program excludes religious schools.
Most of the justices attended religious schools and several send or have sent their children to them. No one spoke of those experiences in court Wednesday.
To qualify for the Maine program, schools don’t even have to be in the state, or the United States for that matter, said Michael Bindas, a lawyer with the libertarian public interest law firm Institute for Justice who argued on behalf of the parents.
But Christopher Taub, Maine's chief deputy attorney general, told the justices that the critical issue is not the location of the school, but whether it is “inculcating people in a particular religion.”
Taub drew the ire of Justice Samuel Alito, who noted that parents could send their children to tony private schools and have the state pick up part of the tab.
“That's the rough equivalent of a public education?” Alito asked derisively.
Justice Elena Kagan said Maine seemed to design its program to avoid raising “questions of religious favoritism, religious division and so forth.”
Last year, the high court ruled 5-4 that states must give religious schools the same access to public funding that other private schools receive, preserving a Montana scholarship program that had largely benefited students at religious institutions.
But even after that ruling, the 1st U.S. Circuit Court of Appeals upheld the Maine program, holding that the state was not violating anyone’s constitutional rights by refusing to allow taxpayer money to be used for religious instruction. The three-judge panel included retired Justice David Souter, who occasionally hears cases in the appeals court.
The Supreme Court could use this case to resolve the extent to which religious schools may use public funding for explicitly religious activities, such as worship services and religious education courses.
Parents sued in federal court to be able to use state aid to send their children to Christian schools in Bangor and Waterville. The schools in question, Bangor Christian School and Temple Academy, are uncertain whether they would accept public funds, according to court filings.
The Bangor school said it would not hire teachers or admit students who are transgender. Both schools said they do not hire gay or lesbian teachers, according to court records.
A decision in Carson v. Makin, 20-1088, is expected by late June.