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Justices appear poised to force taxpayers to fund religious education

Can taxpayers be forced to fund religious education? The Supreme Court appears likely to answer that question in a discouraging way.

The Supreme Court has considered a handful of religious-liberty cases of late, but as Vox's Ian Millhiser noted last week, they've generally involved religious conservatives seeking exemptions from laws and policies. The justices have heard cases in recent years, for example, about faith-based organizations arguing that Covid-19 restrictions and contraception policies shouldn't apply to them.

Carson v. Makin, which the high court considered yesterday, is a very different kind of case. At issue in the case is a seemingly dry subject — education subsidies in Maine — which gets a lot more interesting upon further inspection.

There are areas in rural Maine in which there are no public schools. Families in those areas are given taxpayer subsidies from the state — money that would ordinarily go to schools themselves — which they can use at public or private schools of their choice.

But under Maine's program, the money can't go toward religious education. The principle is obvious: In the United States, we have a First Amendment that separates church and state. People can give money to religious institutions for faith-based education if they want to, but the government shouldn't force taxpayers to subsidize religious lessons.

Some families in Maine didn't quite see it that way, challenging the state's policy in court, claiming discrimination. As NBC News' report on yesterday's oral arguments made clear, Republican-appointed justices seemed to agree.

The Supreme Court on Wednesday appeared likely to rule that state programs providing money to parents for their children's high school tuition cannot exclude schools offering religious education. Such a ruling would loosen longstanding restrictions on using taxpayer money to pay for religious instruction, further lowering the wall of separation between church and state.

At one point yesterday, Justice Stephen Breyer, one of the outnumbered progressive minority, said, "We don't want to get into a situation where a state will pay for the teaching of religion."

But by some measures, that's precisely the "situation" some on the right, including Breyer's colleagues, are looking for. "The parents are seeking equal treatment. They're saying, 'Don't discriminate against me because I'm religious,'" Justice Brett Kavanaugh said.

If that means that taxpayers have to subsidize religious education against their will, so be it.

Slate's Mark Joseph Stern noted that Maine officials filed a brief with the justices, highlighting the policies at Bangor Christian School and Temple Academy — the two schools that would be in a position to receive taxpayer subsidies if the Supreme Court sides with the plaintiffs. From Stern's article:

  • Bangor Christian School expels all students who identify as gay or transgender, or who display any gender-nonconforming behavior, on or off campus. Children who profess to be gay are expelled even if they swear to remain celibate.
  • BCS compels all teachers to affirm that they are a "Born Again" Christian and an "active, tithing member of a Bible believing church." It will not hire teachers who are gay, transgender, or gender-nonconforming.
  • BCS explicitly denounces non-Christian faiths; in social studies class, for example, ninth grade students are taught to "refute the teachings of the Islamic religion with the truth of God's Word." All students are instructed that men serve as the head of the household.
  • Temple Academy has a "pretty hard lined" rule against accepting non-Christian students. It will not admit students who are gay or transgender. Every student's parents must sign a "covenant" affirming their opposition to abortion and same-sex marriage. Students must sign a "covenant" promising to glorify Jesus Christ and attend weekly religious services.
  • TA rejects any student with same-sex parents, even if the student is not LGBTQ.
  • To work at TA, instructors must acknowledge "homosexuals and other deviants" are "perverted." The school only hires born-again Christians, even for custodial positions, and openly discriminates against LGBTQ applicants.

The point is not that these schools should be prohibited from espousing such beliefs or adopting such employment practices, offensive as they are. The schools are part of private religious institutions, and these policies are protected under the First Amendment.

The point, rather, is that taxpayers shouldn't be asked to subsidize these schools — and the Supreme Court's dominant conservative majority is likely to do exactly that.

A ruling is expected in June. Watch this space.