The Supreme Court heard one of the most important cases of the term and one with enormous implications for religious freedom and school choice. At oral argument in Carson v. Makin, it considered whether a 1982 Maine law violates the First Amendment by excluding religious schools from the state’s “tuitioning system,” which pays for students to attend private schools. Given Maine’s rural character, out of its 260 school administrative units (essentially districts), 143 do not operate a secondary school. To help students in those districts attend secondary school, the state has paid for students to attend either another public school or a private school of their choice. Until 1982 that had included religious schools.

The Institute for Justice filed the case after 2017’s Trinity Lutheran v. Comer, which held that the First Amendment’s Free Exercise Clause was violated by Missouri’s refusal, because of its state Blaine Amendment, to award a grant to a church school to resurface its playground. The Institute for Justice and its named plaintiff, the Carson family, contended that the Supreme Court’s reasoning in the Trinity Lutheran case made the Maine state law clearly unconstitutional. The Institute for Justice lost at trial and on appeal. The First Circuit panel, which included retired Justice David Souter, ruled in the appeal that Maine’s policy of excluding students who want to use its tuition assistance program does not violate the Free Exercise Clause because of the court’s distinction between religious status and religious use. In both Trinity Lutheran and 2019’s Espinoza v. Montana Department of Revenue, the court said that discrimination based on religious status is unconstitutional but declined to say the same about religious use. Maine argued that religious schools could in fact participate in the program as long as they offered a non-sectarian education, i.e. they were not religious, making the law really discrimination based on religious use not religious status. Regardless of the strange claim that religious schools are not discriminated against as long as they aren’t religious, this case will test whether that tenuous distinction between status and use can be sustained.

The December 8, 2021 oral argument indicates that it won’t be. The attorney for the Institute for Justice, Michael Bindas, immediately seized on the difficulty of distinguishing between status and use. Teaching religion is simply what they do, so distinguishing between the two categories is unhelpful. Other justices on the conservative wing of the court clearly seemed to find his reasoning persuasive. Justice Thomas, for example, pointed out that parents can’t choose to not send their child to school at all. Since it’s compulsory, it simply can’t be described as a benefit as Maine wanted to argue. The liberal bloc of the court, particularly Justice Breyer, worried that siding with Carson could mean that states are “going to get into all sorts of religious disputes” because taxpayers would object to having public money go to schools that they object to. Bindas’s claim was that since the money goes to the parents, that makes it the parents’ choice and therefore is not direct government aid. Maine’s deputy attorney general, Christopher Taub, argued that this was not in fact religious discrimination and that Maine was simply providing a benefit of a secular education. That raised two difficulties for him. One is that Maine had allowed some religious schools to participate as long the state concluded their education was non-sectarian but had excluded schools that made the religious instruction optional. Thus, it wasn’t clear how they were choosing to exclude one religious school rather than another. Under traditional Establishment Clause analysis this would easily constitute an excessive entanglement. As well, Chief Justice Roberts asked if one religious school as matter of doctrine thought that it should simply offer an education and not engage in religious instruction but another religious school thought that it should engage in religious instruction, would both schools be able to participate? Taub said only the first school would be able to participate, which indicated to Roberts that that this did allow for religious discrimination.

Perhaps the best hope for Maine came at the beginning of the oral argument, when Justice Thomas asked if the plaintiffs actually had standing since the schools they wanted to send their children to were apparently not willing to accept the state money even if it were available. If the court were to dismiss for lack of standing it would certainly not settle the issue, because other cases, two in particular from Vermont and Maryland, are already working their way up to the court. Such a response would only allow the high court to dodge the question temporarily in the hope that a more straightforward case would be a better alternative for deciding the issue as opposed to Maine’s peculiar educational structure.

Assuming the court doesn’t dismiss for lack of standing, it has three options. It could say 1) that discrimination based on religious use is unconstitutional or 2) that the lower court was wrong, and that this really is a case of discrimination based religious status and not religious use and reverse on that basis or 3) that discrimination based on religious use doesn’t violate the Constitution. Given today’s oral argument, option three is extremely unlikely, option two merely unlikely, and option one is the most likely outcome. A decision is expected in the spring of 2022.

If the court does choose option one, that would also mean the death of the state Blaine Amendments, which forbid states from using public money to support religious institutions. Ironically, Senator Blaine’s home state of Maine does not have a Blaine Amendment. Nevertheless, these amendments have been on life support since Trinity Lutheran, only sustained by the status/use distinction. Choosing option one would end that one meager source of nourishment and let the Blaine Amendments finally expire rather than carrying on in their current undignified, half-vegetative state.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

Additional Education Next coverage of Blaine Amendment-related cases:

• • The Education Exchange: Supreme Court to Weigh Whether Maine Can Exclude Religious Schools, Sept. 10, 2021
  • Blaine Fights Back, Joshua Dunn, Nov. 23, 2021
  • A Landmark Ruling for Religious Schools, Joshua Dunn, Winter 2021
  • In Supreme Court Case, a Far-Reaching Win for Religious-School Parents, Joshua Dunn, Fall 2020
  • Justice Alito’s Brief Retelling of Blaine Amendment History, Samuel Alito, June 30, 2020