Protect The First Foundation Tells Supreme Court that Denying Funding for Students at Religious Schools Violates the Free Exercise Clause
Brief Calls on Supreme Court to End Maine's Discrimination Against Religious BelieF
On Friday, Protect The First Foundation filed a brief in Carson v. Makin, a case asking whether private schools can be denied access to public benefits because they will put them to religious use.
The case concerns several parents who successfully petitioned the Supreme Court to hear their challenge to Maine’s refusal to make its tuition assistance program available for religious schools. PT1st’s amicus brief provides the court with many reasons to reverse an opinion from the First Circuit Court of Appeals holding that Maine’s scheme passed constitutional muster.
As Protect The 1st reported in July, Maine is adopting a very eccentric – and discriminatory – policy toward religious schools. It recognizes that religious schools – be they Catholic, generically “Christian,” Jewish Orthodox, or Muslim – are eligible for student-aid programs regardless of that school’s religious status. The Supreme Court made clear last year in Espinoza v. Montana Department of Revenue that at least that much was constitutionally required. Maine nevertheless denied its tuition assistance program because these schools dare to include religious instruction in their school day.
In short, Maine says it is okay for a nominally “Catholic” school to receive funding as long as it doesn’t set aside time during the school day for Catholic activities, such as the Mass or Bible discussion.
In this way, Maine forbids parents from accessing publicly available aid to send their children to religious schools. Maine restricts these funds despite religious schools satisfying Maine’s educational requirements in important subjects. Maine’s policy also ignores many parents’ religious obligation to provide their children with a religious education.
That parents in many religions have such an obligation is well documented. The Vatican Council II charges parents with “the duty of entrusting their children to Catholic schools wherever and whenever it is possible.” Muslims leaders say Muslim schools are an essential way to preserve Muslim identity and beliefs and provide places where Islamic attire can be worn without pressure toward un-Islamic behavior. For Jewish schoolchildren, it would be impossible in public schools to participate in daily prayers, or eat in outdoor booths during the holiday of Sukkot.
These religious schools provide spaces for passing on beliefs and culture while also meeting high standards in teaching math, science, history, and English. As the PT1st brief showed:
Families have a free exercise right to educate their children in religious schools quite apart from their right not to be discriminated against on the basis of religious status. And excluding them from a publicly available benefits program—to which they have contributed tax dollars and which would be available to them but for their desire to educate their children at a school that teaches about their faith—places a substantial burden on that right.
What is the nature of that burden? It’s a matter of paying a tax that funds a benefit that everyone is eligible to receive except students at religious schools.
[U]nder Maine’s statutory scheme, that burden is effectively increased by nearly 100% for parents who prefer a religious education for their children.
PT1st’s brief demonstrates that Maine’s laws are burdensome and anything but neutral with respect to religion. We will continue to monitor this case as the Justices hear oral argument later this term. We hope the Court will take to heart the points raised in our brief and hold that the right recognized in Espinoza extends to religious schools that act religiously as well as just those that have a religious name.