court case

Supreme Court hears arguments on public funding of religious schooling

In a Maine case, the justices are widely expected to rule in favor of a further expansion of public funding for parochial schools

Kjetil Ree

Supreme Court of the United States

The Supreme Court heard oral arguments Wednesday morning in Carson v. Makin, a case centering on the constitutionality of public funding of religious education. Following the arguments, activists and observers expect the justices to further broaden public funding of religious education.

At issue is whether Maine can bar students in rural areas without public school districts from receiving public assistance to attend parochial schools. The state provides families in such areas with funding to find schooling, but excludes sectarian schools.

Michael Bindas, the attorney representing the petitioners — parents suing Maine over the rule — argued that “Maine’s sectarian exclusion discriminates based on religion. Like all discrimination based on religion, it should be subjected to strict scrutiny and held unconstitutional.”

Maine’s Chief Deputy Attorney General Christopher Taub responded that under the program, the state is essentially “outsourc[ing]” public education to private schools.

“Maine has determined that as a matter of public policy, public education should be religiously neutral,” Taub said. “The petitioners want an entirely different benefit, instruction designed to instill religious beliefs at taxpayer expense. They are not being discriminated against. They simply are not being offered a benefit that no family in Maine is entitled to.”

U.S. Deputy Solicitor General Malcom Stewart also argued in defense of the Maine law.

Religious schooling advocates, including several Jewish groups — among them the Orthodox Union, National Jewish Commission on Law and Public Affairs, Agudath Israel of America, National Council of Young Israel and Jewish Coalition for Religious Liberty — have filed amicus briefs urging the Court to overturn a lower-court decision and allow the religious schools to receive public funding.

“Judging from the questions of course and reactions, it looked like a strong majority was there… in favor of the parents and against the state, which included Chief Justice [John] Roberts, I thought,” Agudath Israel’s Vice President for Government Affairs Abba Cohen speculated to JI. “There was this sense from the majority that after going through different issues they really did sense that there is discrimination going on here.”

“As Justice Barrett said, the statute doesn’t talk about being ‘religion neutral,’ it talks about simply being ‘sectarian,’” Cohen continued. “The arguments and also the reactions of a majority of the justices seemed to indicate that they were skeptical about the program and… they didn’t buy some of the distinctions that were being made.”

Caroline Mala Corbin, a law professor at the University of Miami specializing in the First Amendment’s speech and religion clauses who opposes a ruling for the petitioners, told JI she also expects the court to rule in the parents’ favor.

“A lot of the justices seemed to be harping on this idea that any time you deny money to a religious organization it is discrimination against religion,” Corbin said.

“Overall, the Supreme Court has been following a path of eviscerating the Establishment Clause and aggrandizing the Free Exercise Clause. And I think today’s case is no different,” she continued. “We also have an Establishment Clause which actually bans giving money to religious organizations under certain circumstances. And even if it doesn’t ban it, it’s certainly an Establishment Clause value for the government not to fund religious education. Those Establishment Clause prohibitions seem to have vanished from the discussion.”

Howard Slugh, the general counsel for the Jewish Coalition for Religious Liberty, said that he is “hesitant to make any kind of guess based on oral arguments” but he also expects the Court to side with the parents “based on their prior opinions.”

Other Jewish groups such as the Anti-Defamation League, National Council of Jewish Women, Union for Reform Judaism and Women of Reform Judaism filed an amicus brief supporting the Maine law.

“As we and coalition partners supporting Maine’s action have said to the Court, a ruling finding that Maine’s program is unconstitutional would be inconsistent with past precedent and would undermine the right of states to protect their taxpayers from coerced funding of distinctly religious activities,” Steve Freeman, ADL’s vice president of civil rights, told JI. “Simply put, this should not be viewed as a case of discrimination against religion, but rather an opportunity for the Court to reaffirm that nothing in the Constitution should require or has ever required public funding for religious education.”

NCJW did not provide a comment before press time.

Justice Neal Gorsuch noted that the Maine law “seems to favor religions for whom” after school or weekend religious programs are an “adequate substitute” for full-time religious schooling and “discriminate against religions for whom that is not an adequate substitute.” As an example, he continued, “To the Orthodox Jewish family it is a burden, and to the Protestant family it would not be,” Gorsuch said. 

Nathan Diament, executive director of the OU’s Advocacy Center, said that Gorsuch’s comments were “notable” because they indicate a growing recognition of Orthodox Jewish issues by the Court.

“I don’t think 40-50 years ago, there was as much sensitivity on the Court to religious diversity, particularly not to Orthodox Judaisim in particular,” he said.

At another point during oral arguments, Justice Amy Coney Barrett referenced the “Jewish-Palestinian conflict.”

Questioning Taub on the state’s screening process, Barrett said, in an apparent reference to the Israeli-Palestinian conflict, “How would you even know if a school taught all religions are bigoted and biased, or Catholics are bigoted or, you know, we take a position on the Jewish-Palestinian conflict because of our position on, you know, Jews, right?” 

“ADL would urge Justice Barrett to refer to the conflict as between Israelis and Palestinians, not Jews and Palestinians,” an ADL spokesperson told JI. “While the Jewish people have strong historic, religious and cultural ties to Israel, Jews and Israel are not synonymous. While her comments appeared to be unintentional, we unfortunately have seen in the U.S. and across the world that equating Jews with the conflict has had dangerous consequences.”

Taub, Maine’s chief deputy attorney general, argued that the Court should not rule in the case because the petitoners lack standing, as the religious school they sought to send their children to “has zero interest” in receiving state funds.

“I think the justices are keen to reach the merits of the case and therefore will not make a ruling based on standing,” Corbin predicted.

If the justices rule for the petitioners in the Maine case, it will be the latest in a string of recent victories for religious liberty advocates. The Court has ruled multiple times in recent years in favor of expansions of public funding of relgious schooling, as well as against COVID restrictions at religious gatherings and in favor of a Catholic agency in Philadelphia that refused to work with same-sex couples trying to become foster parents.

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