On December 8, the U.S. Supreme Court will hear oral arguments in Carson v. Makin, which involves a student-aid program in the state of Maine for private secondary schools that excludes parents who want to send their children to private schools that align with their faith.

The government program is designed to benefit parents and students in rural areas of the state where school districts don’t have public secondary schools. The tuition money can even be used to attend a school in another state as well as private schools within the state. But parents may not choose schools that Maine deems “sectarian,” i.e., religious.

Maine believes its position is in keeping with the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment of religion …”) The parents who brought the lawsuit believe the opposite is true, that singling out private religious schools for exclusion exhibits hostility toward religion, prohibited by the First Amendment’s Free Exercise clause, which follows immediately after the Establishment Clause (“… or prohibiting the free exercise thereof …”).

The case highlights an unfortunate historical antipathy by state governments toward religious schooling that dates back to the late 1800s, when so-called Blaine Amendments were incorporated into many state constitutions in response to the increasing number of religious schools in the country, most of which were Catholic.

Several cases involving government funding and religious education have reached the Supreme Court over the years. The most recent was the high court’s 2020 decision in Espinoza v. Montana Department of Revenue, in which the court struck down a Montana government ban on the use of state tuition funds at religious schools.

The facts of the Maine case are only slightly different than Espinoza, but it was enough for the 1st U.S. Circuit Court of Appeals to uphold Maine’s ban.

But when the U.S. Supreme Court accepts a case like that for hearing, odds are that more than a few justices believe the lower federal court made a mistake. The oral arguments may reveal what a majority of the justices think about the differences between the Maine and the Montana bans and whether Maine’s ban can survive after the court’s Espinoza decision.

The Maine parents are represented jointly by First Liberty Institute (First Liberty) and the Institute for Justice (IJ).

In a press release, Institute for Justice Senior Attorney Michael Bindas, who will argue the case before the justices, summarized the issues at stake.

“By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” Bindas said. “Religious schools satisfy Maine’s compulsory education laws and meet every secular requirement to participate in the tuition assistance program, yet parents are barred from selecting them simply because they also provide religious instruction. That is religious discrimination, and the Constitution does not tolerate it.”

Kelly Shackelford, President, CEO and Chief Counsel for First Liberty also commented on the importance of the case.

“Government discriminating against parents because of their religious choices for their children is not only unconstitutional, it’s wrong,” Shackelford said.  “We are hopeful the Supreme Court will put an end to these violations, not only for the sake of the Carsons and the Nelsons, but for the sake of all parents in America.”

Attorneys for the state of Maine will argue in support of the state’s ban on funds being used at sectarian schools. The high court has also granted the U.S. Solicitor general’s request for several minutes to argue the U.S. government’s position, which supports the Maine ban.

If you’re interested, the audio of the oral arguments will be livestreamed here.

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