Religious Freedom Watch: SCOTUS To Consider Whether Religious Schools May Do Religious Things

Today, the Supreme Court will hear arguments in Carson v. Makin, a case that concerns whether Maine may constitutionally exclude religious schools from participating in the state’s private-school tuition-assistance program. To those who have been paying attention to recent Supreme Court decisions in this area, the answer may seem obvious: Such discrimination is unconstitutional. The Supreme Court said as much last year when it held that Montana could not exclude religious schools from participating in its own school-choice program and, before that, in 2017 when it struck down a law that offered aid only to secular nonprofit organizations in Missouri.

In Carson, however, the justices must decide whether Maine’s discrimination against faith-based schools may be sustained on the flimsy distinction between a school that is religious and one that does religious things. In simple terms, the state argues that, while the Constitution would not allow it to deny aid to Catholic schools (or other faith-based schools) simply because they are Catholic, it could allow the state to deny aid to schools that sought to live out their faith during the school day by, say, having Mass or providing religious instruction.

As anyone who works in a faith-based school understands, that is a distinction without a difference. We hope the Court — which has previously avoided the question — will now make that clear. Indeed, as Justice Neil Gorsuch observed in a concurring opinion in Espinoza v. Montana Department of Revenue last year, the Constitution permits no distinction between religious status and religious conduct because “the right to be religious without the right to do religious things would hardly amount to a right at all.” Read more»

Kathleen Porter-Magee | “The Supreme Court’s Chance to Fight State Discrimination against Faith-Based Schools” | December 8, 2021


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