Supreme Court oral arguments in Carson v. Makin: What to expect in Maine school voucher case

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The Supreme Court is set to hear oral arguments Wednesday in Carson v. Makin, which involves questions about whether the state of Maine is violating two families' religious freedoms.

The state has offered a tuition assistance program for families who live in areas without secondary public schools, allowing them to send their children to public or approved private schools of their choice. Under the program, families aren't able to apply those funds to a sectarian school.

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On Wednesday, the court will hear from Institute of Justice attorney Michael Bindas, who is representing the two families involved. First Liberty President Kelly Shackelford is serving as co-counsel for the families. They're suing Commissioner of the Maine Department of Education A. Pender Makin in her official capacity. The state will be represented by Chief Deputy Attorney General Christopher C. Taub and Malcolm L. Stewart, who serves as deputy solicitor general for the U.S. Department of Justice.

What are the main arguments?

The families allege that Maine is violating the U.S. Constitution – specifically the First and 14th amendments – by denying tuition assistance based on their interest in religious education. Maine's rule, they argue, is neither neutral toward religion nor generally applicable and discriminates against the families. 

A police officer patrols in front of the U.S. Supreme Court in Washington, D.C., on Tuesday, Oct. 12, 2021. (Emily Elconin/Bloomberg via Getty Images)

The rule, petitioners say, also violates the Establishment Clause since it "lacks a secular purpose, has a principal effect of inhibiting religion, and, perhaps most problematically, requires excessive government entanglement with religion. To determine whether a student may attend her chosen school, the state must make intrusive inquiries and judgments regarding the school’s religious curriculum and activities."

A school classroom (iStock)

Two recent Supreme Court cases – Espinoza v. Montana Department of Revenue and Trinity Lutheran Church of Columbia, Inc. v. Comer – are also cited as establishing precedent that purportedly supports the families' arguments. Before reaching the Supreme Court, the Maine case came before the First Circuit. That court ruled in favor of Maine, holding that there was a distinction between the religious "status" of education and its religious "use."

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That distinction has no "basis," according to the petitioners. Maine is defending that distinction, however, and claiming that the two families are seeking something beyond is what is constitutionally protected.

"They are not being denied a generally available public benefit because of their religious status," the state's brief reads. "The public benefit Maine is offering is a free public education. Petitioners want an entirely different benefit – a publicly subsidized sectarian education."

It adds that "[p]arents who want to send their children to a sectarian school for religious reasons are treated precisely the same as parents who want to send their children to a sectarian school for academic, athletic, social, or other reasons. Similarly, a school’s eligibility does not turn on its religious status. As long as the school provides a nonsectarian (i.e., public) education, it may receive public funds."

Notable briefs

Fox News previously reported on an amicus brief backed by former Attorney General William Barr, who argued that "Maine’s law is the reflection of the relentless campaign of secularization intent on driving every vestige of traditional religion from the public square."

Attorney General Bill Barr holds a news conference in 2020 in Washington. (Michael Reynolds-Pool/Getty Images)

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Meanwhile, the National School Boards Association has defended Maine with a brief that argues "significant" harm could be done to public education. "If this Court requires Maine to fund religious education as part of its public education options, it will shift significantly from its precedent recognizing the importance of open, inclusive, and religiously-neutral public schools," its brief reads.