Wednesday, June 22, 2022
“That is discrimination against religion,” the Chief Justice writes for a 6-3 majority in Carson v. Makin. Maine’s policy thus infringes on the Constitution’s guarantee of religious “free exercise.” This case is similar to one the Court heard from Montana two years ago. As the Chief wrote then: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
So why are we here again? Because the U.S. Court of Appeals for the First Circuit tried to uphold Maine’s policy by making nonsensical distinctions. It claimed Maine’s program offers only the “rough equivalent” of a nonsectarian public-school education, and religious believers could take it or leave it. This argument merely builds the discrimination into the definitions. A subsidy solely for secular private schools is the same as an exclusion for religious ones.
The First Circuit also has a factual problem, as the Chief points out. Private schools getting Maine’s public funds are exempt from some state curriculum requirements. They can be single-sex institutions. They can charge tuition that is several times the state’s subsidy, with parents paying the rest. This is not a “rough equivalent” to a public-school education.