The fight for school choice has always faced push-back when it comes to funding religious education. Even though Pell Grants and federal student loans can be used to attend religious universities, people become wary when school-choice dollars—whether in the form of vouchers, tax credits, or whatever—are given to religious K‑12 schools. Over the years, the Supreme Court has weighed in on this issue a few times, and the justices have usually concluded that states can’t discriminate against religion in their school-choice programs. Last year was the most recent decision, Espinoza v. Montana Department of Revenue, in which the Court ruled that the Blaine Amendment in Montana’s Constitution could not be used to discriminate against religious education. 

Espinoza was brought by our friends at the Institute for Justice. Now, IJ is back at the Supreme Court with the follow up case, Carson v. Makin, which could be the final case in a long line of decisions dealing with school choice and religious education. 

Maine administers one of the oldest school choice programs in the nation. Created in 1873, the state’s tuitioning program pays for students living in underserved rural areas to attend schools of their parents’ choice—whether private or public, in-state, or out-of-state. Parents and children were free to direct these funds towards religious schools until 1980, when a flawed legal opinion by the state’s then-attorney general improperly counseled the state legislature that funding religious schools would violate the Constitution’s Establishment Clause. In response, Maine required any school participating in the state’s tuitioning program to be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” The state interprets this to mean “a school that does not provide any religious instruction at all.” As a result, children and families in Maine have been categorically barred from directing education dollars towards religious schools of their choice.

The Institute for Justice filed suit in on behalf of David and Amy Carson, parents whose children qualified for the program but were ultimately barred from directing funds towards schools of their choice because those schools provided religious instruction. The district court initially found for the state and the First Circuit affirmed on appeal. Now the Supreme Court will decide whether a state violates the Constitution when it prohibits students from using a student-aid program for religious instruction.

Cato has filed a brief in support of the Carsons, arguing that Maine’s exclusion of religious options from the state’s tuitioning program is a blatant end-run around the bedrock principle of religious equality contained within the First Amendment and repeatedly affirmed by the Supreme Court. The Free Exercise Clause protects both our inner beliefs from government coercion as well as the right to outwardly practice those beliefs. Many Americans practice their religious beliefs by sending their children to private religious schools—a choice protected by the Constitution.

We urge the Supreme Court to acknowledge that public education and religion are inextricably and unavoidably entwined. States can’t discriminate against religion with the Constitution’s imprimatur by defining public education as a necessarily secular endeavor. Mandatory secular education encroaches on sincerely held religious beliefs in a variety of areas, from the origins of life to ethical issues like sexual education. Those lucky enough to agree with those secular values will find Maine’s tuitioning program to be good for their children. Those who disagree will be left unable to raise their children according to their values in an equal manner. Whether this law discriminates against religious people, or against those who do religious things (such as sending their children to religious schools as their faith commands), it is a violation of Free Exercise all the same. The First Amendment does not differentiate.