WASHINGTON (CNS) — In a 6-3 ruling June 21, the Supreme Court said a college-assistance program in Maine that barred religious schools violated the constitution’s freedom-of-exercise clause.
The opinion, written by Chief Justice John Roberts, said: “A state need not subsidize private education, but once a state decides to do so, it can no longer disqualify some private schools simply because they are religious.”
He also said the court’s decision in Carson v. Makin was based on a principle in its two previous decisions, specifically the 2020 opinion in Espinoza v. Montana Department of Revenue. In this case the court said tThe state of Montana could not exclude religious schools from receiving tax credit-funded scholarships under its school choice program.
The Maine case went a step further by asking whether the state can prevent state-funded students from attending schools that offer religious instruction.
Roberts stressed that a neutral benefits program that grants public funds to religious organizations through the independent choice of recipients of those benefits does not violate the institution clause of the Constitution.
During the hearing in that case last December, several judges criticized the state’s decision-making process in determining how religious a school is in order to decide whether or not the school can participate in the rural community-specific program.
Schools that could “feed” into the curriculum as potentially “religious” were excluded, while other schools that the state board of education deemed “roughly equivalent” to public schools—or religiously neutral—were allowed to participate in the curriculum.
“This is doctrinal discrimination. It’s unconstitutional,” Roberts said at the time, which he believes he was essentially repeating.
Judge Stephen Breyer emphasized in his dissent that the court “never before has decided what it is saying today, namely that a state must (may not) use state funds to pay for religious education as part of a program of study designed to Ensure the provision of free, nationwide public education.”
Breyer, along with Justice Elena Kagan and part-Justice Sonia Sotomayor, said the decision paid more attention to the free exercise clause and not enough to the constitution’s founding clause.
Cardinal Timothy M. Dolan of New York, Chair of the Committee on Religious Liberty of the United States Catholic Bishops’ Conference, and Bishop Thomas A. Daly of Spokane, Washington, Chair of the Committee on Catholic Education of the USCCB, said the Supreme Court was “right decided that the Constitution not only protects the right to be religious but also to act religiously.”
“This reasonable result reflects the essence of Catholic education,” they said.
“The Court has reaffirmed that states cannot exclude religious schools from generally available public services because of their religious affiliation or practice,” the USCCB Chairs added. “In our pluralistic society, it is vital that all people of faith can participate in programs open to the public and thus contribute to the common good.”
Nichole Garnett, a law professor at Notre Dame Law School who focuses on education policy, called the decision “a victory for both religious freedom and American schoolchildren.”
“The majority makes it clear once again that when the government provides a service to private entities, it must treat religious entities — including religious schools — fairly and equitably,” she said in a June 21 statement.
She also noted that the statement cements the constitutional principle that “requires government neutrality — and prohibits hostility — toward religious believers and institutions.”
Garnett, signed an amicus letter in the Maine case filed by Notre Dame Law School’s Religious Liberty Initiative on behalf of elementary and secondary schools from three faith traditions – Catholic (Partnership for Inner-City Education), Islamic (Council of Islamic Schools in North America) and Jewish (National Council of Young Israel).
Noting how this decision could affect school choice programs, she said it “removes a major barrier to expanding parental choice in the United States by clarifying that when states introduce choice programs, they must allow parents.” to choose denominational schools for their children.”
“Faith-based schools have a long and proven track record of delivering quality education, especially to our most disadvantaged children, and policies that exclude them from private school choice programs are both unconstitutional and unwise,” she added.
Becket, a religious liberty law firm, also filed an amicus brief in this case, stressing that states have a long history of barring religious institutions from public services, often in part because of the Blaine Amendments, which were passed at a time of anti-Catholic sentiment the last 19th century.
The Blaine Amendment prohibiting direct federal aid to educational institutions with religious affiliations was first proposed in Congress in 1875 by Maine Rep. James G. Blaine. (Blaine was also a US Senator from 1876 to 1881.)
In their statement, Cardinal Dolan and Bishop Daly noted that Blaine’s “cynically anti-Catholic” proposal was narrowly defeated in Congress, but the Blaine amendments “were ultimately passed in some form by 37 states.”
“These laws have nothing to do with state religious neutrality,” said the two prelates. “Rather, they are expressions of hostility towards Catholics. We are grateful that the Supreme Court continues to censure this damaging legacy.”
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