Supreme Court Approves Tuition Payments for Maine Religious Schools Despite the Fading Establishment Clause

But Maine Says Schools Receiving Tuition Payments May Not Discriminate Against Gay, Lesbian and Trans People, So Religious Schools Reject the Funds

The Supreme Court Conservative Majority held that it was unconstitutional for Maine to refuse payment of tuition assistance to religious schools that intended to use the payments to pay the cost of religious teachers and supportive staff. Carson v. Makin, 596 U.S. __ (June 21, 2022) Religious teachers also taught traditional high school courses of their school’s choosing as they were not required to follow the Maine prescribed curriculum for public high schools. As part of the teaching responsibilities, even traditional subjects were taught with religious concepts. For example, students were taught that the atmospheric concentration for oxygen necessary for human life were established by God to make the earth a hospitable place.

The Majority concentrated their opinion on the Free Exercise Clause of the First Amendment and concluded that if Maine set up a tuition payment system for private schools, it had to also make those payments to religious schools. The Majority said Maine could not discriminate against religious schools by denying them tuition payments made to non-sectarian private schools or they would violate the Free Exercise Clause. In so holding, in an Opinion by Chief Justice Roberts, the Majority virtually ignored the Establishment Clause of the First Amendment.

The Roberts Court Majority view themselves as Originalists who always go back to the intent and meaning of the Framers of the Constitution, but they deliberately avoided doing that in this case for the reason that history shows that the Maine tuition assistance program, which the Majority said must be made available to religious schools, is nearly identical to Virginia Governor Patrick Henry’s proposal to impose Assessments on Virginia citizens to pay Teachers of Religion. Jefferson, Madison and George Mason were aghast at Governor Henry’s Proposed Bill, and Madison drafted the famous “Memorial and Remonstrance” which was essentially a petition to the Legislature not to adopt Henry’s Religious Teacher financing program. Mason and others distributed copies of Madison’s Memorial and Remonstrance far and wide in Virginia to obtain the maximum signatures showing opposition.

The text of part of the Memorial and Remonstrance is included in my Harold’s Newsletter, published on September 8, 2022, dealing with the Coach Kennedy Case. Madison was vehement against the Henry proposal. Due to strife amongst various Christian sects, Baptists, Presbyterians and Methodists joined Madison’s opposition to Henry’s Religious Teacher Assessment proposal.

So, if the Court Majority even perfunctorily examined the history of the First Amendment, as they sometimes claim they do if it helps their argument, they would see that Henry’s Assessment proposal was extremely close to the effective operation of the Maine Tuition Assistance program which the Majority said must be paid to religious schools and used for their operational purposes if Maine provides tuition assistance to private non-sectarian schools.

So the Court Majority cites Free Exercise Clause cases requiring, among others, that religious schools be eligible to receive rubber matting surfaces for their school playgrounds. Of course, playground rubber matting is far different from funded religious teaching. The Majority cites other recent cases where they expand the impact of the Free Exercise Clause while reducing the Establishment Clause to an unimportant and avoidable first part of the First Amendment.

As in the New York Rifle case and the Coach Kennedy case, the Conservative Majority, claiming to be textualists, are willing and ready to ignore significant portions of the First and Second Amendment to achieve their intended political result. And they are also willing and ready to ignore precedents like the Governor Henry’s Religious Teacher Assessment proposal and the successful opposition to it led by Madison, Jefferson and Mason, truly important Founding Fathers and Framers of the Constitution.

What would Justices Black and Rutledge, respectively, the Majority writer and Dissenter in Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947), which adopted the Jeffersonian Wall of the Separation of Church and State, say about the current Majority’s willingness to break and tear down that Wall based on nothing more than their own political inclinations unsupported by the history of the First Amendment? The Majority has issued a number of recent decisions elevating the Free Exercise Clause on a high pedestal while downgrading the Establishment Clause to virtual nothingness. I’d call this Constitutional bootstrapping supported by nothing more than their political orientation.

Justices Breyer, Kagan and Sotomayor dissented with Justice Breyer writing the principal dissenting Opinion. He notes the tension between the two clauses of the First Amendment, but also recognizes the importance of the Establishment Clause which “commands a separation of church and state.” He cites cases standing for the proposition that “[a] State cannot act to ‘aid one religion, aid all religions or prefer one religion over another,’” citing Everson. A “State cannot use ‘its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals.” Illinois ex rel. McCollum v. Board of Ed. of School Dist No 71, Champaign County, 333 U.S. 203, 211 (1948), and this prohibits weekly religious teachings in public schools. There can be no prayers in public schools, Engel v. Vitale, 370 U.S. 421 (1962). No Bible reading is permitted in public schools. School Dist. of Abington Twp. v. Schempp, 374 U.S. 203 ((1963). No religiously tailored curriculum in public schools. Epperson v. Arkansas, 393 U.S. 97 (1968). No period of silence for meditation or prayer in public schools. Wallace v. Jaffree, 472 U.S. 38 (1985). No prayers during public school graduation. Lee v. Weisman, 505 U.S. 577 (1992). No prayers during public school football games. Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000). But see Coach Kennedy case allowing communal prayers at end of football game at the 50-yard line, __U.S. __ (2022).( Discussed in September 8, 2022) Harold’s Newsletter.

Breyer then notes a characteristic of both Bangor Christian and Temple Academy, the two schools to which the parents desired to send their children; they “deny enrollment to students based on gender, gender-identity, sexual orientation, and religion and both schools require their teachers to be Born Again Christians.” (Slip op at 16).

Justice Sotomayor in a separate dissenting Opinion criticizes the continued march of the majority to elevate the Free Exercise Clause while downgrading the Establishment Clause. She points to a series of cases over the last five years adopting very different if not radical departures from prior Fee Exercise and Establishment Clause jurisprudence. Justice Sotomayor says, “in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.” “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.” (Slip op at 5).

But the Supreme Court dissenters anticipated the actual result of the case, perhaps without knowing it in advance as they noted these religious schools’ prohibition on students based on gender, sexual orientation and other factors. Within days of the Supreme Court decision in Makin, an article appeared in the Portland Press Herald, dated June 26, 2022, noting that any school applying under the Maine tuition assistance program had to “comply with the Maine Human Rights Act, which prohibits discrimination based on race, gender, sexual orientation, ethnicity or disability and applies to all private schools that decide to accept public money.” “Schools that do not accept LBGTQ teachers, students or students with LBGTQ parents would not be able to participate in the program and benefit from state-funded tuition stipends.”

Since the two schools in the litigation, Bangor Christian Schools and Temple Academy “do not accept gay or transgender students,” they would not be eligible for tuition assistance.

The Maine Attorney General ruled that “the schools would have to abide by state antidiscrimination laws, including laws that protect LBGTQ students and faculty.” “In Maine, Attorney General Aaron Frey criticized the Supreme Court ruling and said all schools that accept public funds, including religious schools, must abide by the Maine Human Rights Act, which bans discrimination on the basis of race, gender, sexual orientation, ethnicity or disability. That would mean accepting gay and transgender teachers and pupils.”

The Attorney General said “[b]oth Christian schools associated with the lawsuit—Temple Academy and Bangor Christian Schools— have policies that discriminate against students and staff on a basis of sexual orientation or gender identity.” Article by David Sharp for the Associated Press, published on August 30, 2022, under headline '“Religious schools shun state funding despite Maine victory.”

Perhaps counsel for the religious oriented parents and their attorneys and the Justices should have consulted the Maine Human Rights Act, Title 5: Administrative Procedures and Services, Part 12 Human Rights, Subchapter 5-B Educational Opportunity, Sections 4601 et seq. The Maine Human Rights Act is a comprehensive statute with rulemaking, complaint formats, hearing procedures, enforcement, rights of action and allowance of attorney fees.

As Shakespeare might say, “Alls Well That Ends Well.”