SCOTUS reportedly poised to deliver advocates for religious schools a huge win

A majority of U.S. Supreme Court justices appeared to support school choice advocates during two hours of oral arguments on Wednesday following arguments by lawyers for two Maine families.

According to NPR, the SCOTUS “conservative supermajority seemed poised” to support a “potentially large expansion of state programs required to fund religious education” in a case related to Maine’s “unusual way of providing public education.”

Because much of the country’s northeasternmost state is rural, a majority of school districts there do not have a high school. The state has handled that by contracting with existing high schools to take in students from surrounding areas that do not have a high school.

Additionally, the state pays the same amount of money to nonsectarian private schools to also take in high school students, but Maine does not pay the same tuition for students who instead attend religious-themed schools.

For years, school choice advocates have sought equal treatment for religious schools through the use of taxpayer funds, “and they had a willing audience in the court’s six conservatives, five of whom attended religious schools,” NPR’s Nina Totenberg wrote, adding that all of them appeared to signal “that they too view Maine’s refusal to fund religious schools as unconstitutional.”

The liberal justices pointed out that in the past, the high court has held that states can choose to create voucher programs that permit parents to send their kids to religious schools, adding that in the Maine case, advocates for school choice are pressing justices to also contend states must treat religious schools like they treat nonsectarian private institutions.

Justice Stephen Bryer noted that religious schools in Maine hold and teach beliefs that appear to violate Maine’s human rights law: “No gay students, no gay teachers, the man is superior to the woman, and a few other things like that.”

Also, Justice Sonia Sotomayor noted that Maine’s existing school funding setup treats all students equally by providing a free public secular education, adding that if a family wants to send their child to a different institution including a religious school then the family, not the taxpayers, picks up the tab.

“But that’s definitely not the way the court’s conservatives saw things,” Totenberg noted.

Justice Clarence Thomas asked Maine Deputy Attorney General Christopher Taub to give his definition of public education, to which he responded that education, in general, should not prefer any religious or teach students “through the lens of religion.”

“Let’s suppose you have two schools,” Chief Justice John Roberts said. “School A is run by a religion … and that religion has a doctrine that they should provide service to their neighbors. … Religion B has a school, but its doctrine requires adherents to educate children in the faith. … Would the first school get the funds?”

To the first, Taub said yes, but to the second choice, he responded “no.”

Roberts fired back: “You’re discriminating against religions based on their belief.”

Justice Neil Gorsuch remained on that point when he asked, “How does that not discriminate against minority religious viewpoints … and favor religions that are more watered down?”

And Justice Brett Kavanaugh “repeatedly suggested that both religious and non-religious schools should be treated the same way,” Totenberg wrote.

“Discriminating against all religions versus secular is itself a kind of discrimination that the court has said is odious to the Constitution,” Kavanaugh opined.

Jon Dougherty


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