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Jacob Posik is the director of communications at Maine Policy Institute, which submitted an amicus brief in support of the petitioners in Carson v. Makin.
Last week, the U.S. Supreme Court ruled 6-3 in Carson v. Makin that Maine’s so-called sectarian exclusion, the law that prevented beneficiaries of Maine’s town tuitioning program from using it to send their children to a private religious school, violates the free exercise clause of the First Amendment and is unconstitutional.
I found it quite remarkable that, following the ruling, the attorney general’s office and Attorney General Aaron Frey himself immediately began reiterating arguments that the Supreme Court rejected, and said he planned to explore, with the Mills administration and the Legislature, ways to undercut the high court’s decision.
“Public funds cannot be used to attend a private school that promotes religion because such schools, by definition, do not provide the equivalent of a public education,” the AG’s office asserted in its press release.
This is precisely the argument the court rejected last week. Writing for the majority, Chief Justice John Roberts said, “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”
Maine’s town tuitioning program is a neutral government aid program. Anyone who resides in a qualifying municipality can use it to send their children to any public or private school of their choice. The “sending” town distributes funds allotted for the child’s education to the “receiving” school or district, and the money flows to the school of the family’s choosing. The program has been on the books in Maine since 1873, and before the exclusion was codified in 1981, was previously used to send Maine children to private religious schools.
The high court’s decision simply strikes down the exclusion codified in 1981. As the attorney general’s office notes at the bottom of Frey’s press statement, there is still existing law in Maine that prevents religious schools from receiving public funds under the tuitioning program if they discriminate against staff or students in admissions or hiring practices in violation of the Maine Human Rights Act. The MHRA still stands after the high court’s ruling. It wasn’t the target of the Carson case.
So why is the attorney general, in concert with the Mills administration and the Legislature, looking to “explore” statutory changes to the tuitioning program “to address the Court’s decision?” Why can’t they admit and accept defeat, respect Mainers’ religious liberty and let the limited families who qualify for this program freely exercise their religion in accordance with the dictates of the highest court in the land?
If a family wants to choose a religious school under the program that violates the MHRA, the school would still, by all accounts, be ineligible to receive public support. Thus, the doomsday scenario painted by the AG’s office in its press statement is nothing more than hyperbole.
Even casual observers of the Supreme Court knew this decision was coming. It had previously held in Espinoza v. Montana Department of Revenue that a state need not subsidize private education, but once it does, it cannot exclude some schools solely because they are religious. They made a similar ruling three years prior to Espinoza in Trinity Lutheran Church v. Comer, a case involving a religious organization’s eligibility to participate in a government program intended to support the resurfacing of playgrounds.
In other words, it was a surprise to literally no one that this is where the high court would come down on Carson. Yet the attorney general acted shocked by the decision, and is scrambling to change the statute.
Neutral government aid programs that give beneficiaries the ability to dictate where public funds go severs the link between the government and the recipients of the funds. As the court has held numerous times now, these programs do not violate the establishment clause. This issue is no longer in question as it relates to Maine’s tuitioning program.
AG Frey should respect the Supreme Court’s decision and stop wasting public time and resources trying to violate Mainers’ rights. Maine has a disturbing political history of religious bigotry that he should instead be working to undo. I promise he has more important things to do than take choice and liberty away from Maine families.
