My NBC News article on today’s Supreme Court ruling banning discrimination against religious schools in Maine’s school choice program

NBC News just published my article on today’s Supreme Court decision in Carson v. Makinwhich prohibits public school choice programs from discriminating against “sectarian” religious schools.

On Tuesday, the Supreme Court struck down a Maine law that excluded most religious private schools from a voucher program in place at similar secular schools. The 6-3 decision in Carson v. Makin is an important victory for the constitutional principle that the government cannot discriminate on the basis of religion. It can also help open up valuable opportunities for parents and students, especially the disadvantaged.

In 2020, the Supreme Court ruled in Espinoza v. Montana Department of Revenue that a state-run voucher program could not exclude religious schools simply because of their “status” as religious institutions. As Chief Justice John Roberts reiterated in his opinion in court on Tuesday, a state cannot “withhold public benefits otherwise available to religious organizations” simply because they are religious….

Until now, the state of Maine has subsidized the cost of private schools offering the equivalent of a secular public school curriculum for the approximately 5,000 children who live in districts (school administrative units, in Maine parlance) too sparsely populated to support their own public school. . However, Maine refuses to subsidize private school attendance with a religious curriculum in these areas….

Defenders of the Maine voucher program, including Judge Stephen Breyer in his dissenting opinion, argued that it was not a case of religious discrimination because the program did not exclude schools affiliated with the religion as such, but rather only those that are “sectarian” – which the state Department of Education defines as an institution which, “in addition to teaching academic subjects, promotes the faith or belief system to which it associates with and/or presents the material taught through the prism of that faith”.

This distinction makes little sense… and the court was right to reject it. The First Amendment clearly protects not only religious beliefs and religious affiliation, but also the “free exerciseof religion (emphasis added). The word “exercise” suggests that people should be free to act according to their faith – including trying to promote it…..

The flaws in the status-use distinction become apparent if we consider what it would mean in other contexts. So if the state had passed a law that extends social benefits to followers of all religions but denies them to those who could “use” some of the money to “promote” their faith, just about anyone which court would strike that down as unconstitutional discrimination. on the basis of religion….

Under Tuesday’s decision, the state remains free to restrict vouchers to schools that do not meet school standards that also apply to religious and secular schools — even if those standards run counter to the beliefs of some between them. For example, it could require beneficiary schools to teach students the theory of evolution despite the fact that some religious groups reject it….

Some argue that any state aid to religious schools violates another part of the First Amendment — the Establishment Clause, which prohibits the state from creating an “established” church. But non-discrimination between religious and secular institutions in no way privileges a particular faith, nor does it imply state endorsement of a faith’s religious beliefs or coercion to adhere to a certain faith….

In addition to upholding an important constitutional principle, Carson v. Makin is a potential boon for poor and disadvantaged children. Social science research indicates that the choice of private school is often particularly valuable for poor and minority children, and that some religious schools – notably Catholic schools – are particularly adept at improving the performance of disadvantaged students. You don’t have to endorse the religious doctrines of these schools (as an atheist, I don’t myself) to recognize the valuable opportunities they offer.

The decision also offers an opportunity to transcend today’s increasingly divisive culture wars over education…. Red and blue states are increasingly seeking to enforce uniform state-sponsored dogma through their public education systems. School choice that includes a wide range of religious and secular options allows dissenters to go their own way and creates valuable competition that parents can take advantage of.

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