Andrea Picciotti-Bayer, National Catholic Register
Wednesday morning the Supreme Court heard oral argument in Carson v. Makin, a case that could decide whether parents in states with no, bad or inadequate public schools can send them to religious schools instead.
Earlier this week I wrote a preview for the Register on this crucial legal battle, brought by parents in Maine who live in areas without a public secondary school — but who are being banned by the state from sending them to religious schools because its tuition assistance program excludes any school that progressive legislators, bureaucrats and judges consider to be “sectarian.”
So, what did we learn from the Supreme Court justices’ questions? The short answer is that a majority of justices seem well disposed toward the Maine parents. We probably won’t have a Carson decision until the summer, and it’s always risky making predictions based on oral arguments. Even so, it’s likely that the Court’s five “Originalists” will back the parents, and it’s likely that they will be supported by Chief Justice John Roberts.
Meanwhile, the Court’s three liberal judges seem friendly to Maine’s stance that parents can only use public funds to send their children to secular schools (a category that might include those that are religious in name only and don’t teach faith).
Make no mistake about it: A Supreme Court ruling opening up Maine’s tuition assistance program to religious schools will be greeted with fury by progressives. Lawyers for Maine and the federal government have even been arguing that the parents in Carson have no judicial recourse at all. They’re desperately worried, because although Maine’s particular program is unique, victory for the parents would be a huge boost for the cause of school choice across the country.
Carson is a more complex case than it might appear at first. A threshold issue is whether the parents can sue in federal court. Maine and the federal government point to the fact that the two schools of choice for the families that filed the lawsuit have said that they are unwilling to participate in the state’s funding program if doing so would subject them to the state’s dangerously broad sexual orientation and gender identity anti-discrimination law. They argue that a ruling in favor of the parents would not redress any concrete injury. Redressability is an element of a party’s legal “standing” to be heard in federal court per Article III of the Constitution. In response, the parents’ lawyer made a convincing argument based on precedent: Not having the opportunity to secure religious education for their kids at the state’s expense is sufficient injury for seeking redress in court.
As to the merits of the case, let’s look at the clues to the outcome offered by Wednesday’s argument, and especially questions from the Supreme Court justices.
Roberts is often considered part of the conservative bloc but has the reputation of being, at times, unpredictable. That said, he authored the majority opinions in both Trinity Lutheran and Espinoza — two recent decisions declaring unconstitutional state laws that excluded religious groups from participating in public benefit programs.
On Wednesday, Roberts appeared to view Maine’s rule as discriminatory. He pointed out that, under its provisions, a private religious school providing a purely secular education is allowed to participate in the state’s program but one that teaches through the lens of faith is not.
Perhaps predictably, the parents will have been encouraged by the probing questions from the Court’s “Originalists” — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — who are firmly committed to interpreting the Constitution according to its original meaning. When it comes to vindicating the First Amendment’s guarantee of religious freedom, these justices have been reliably pro-religious liberty.
Kavanaugh reminded everyone that this case was “not about forcing the state to fund private religious schools.” Instead, he explained that “the lesson of some of the cases is discriminating against all religions versus secular is itself a kind of discrimination that the Court has said is odious to the Constitution.” He also downplayed the idea that “public discord” would be created by the parents’ request for “equal treatment, not special treatment.”
Alito wrong-footed Maine’s lawyer twice. He first asked whether a religious school with beliefs that were more or less aligned with Unitarianism — that is, one whose teachings have a secular humanist flavor — would pass muster with Maine’s review board. Then Alito asked whether the state would object to including in its program a private school that taught Critical Race Theory. The answers were muddled, to say the least.
In contrast, the “liberal bloc” of this Supreme Court — Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor — appeared to side with Maine’s exclusionary rule. The questions and observations by Breyer and Sotomayor were particularly troubling.
Breyer offered a description of the Christian schools preferred by the parents bordering on caricature. He said, “I take it the reason is something like that they’re — they’re religious beliefs in the school’s belief. They don’t want to have gay students, they can’t. They can’t have gay teachers. They have to teach that the man is the boss of the woman and a bunch of other things like that.”
Sotomayor took a similarly hostile progressive line. She told the parents’ lawyer: “You admit that the reason why this school is important to these parents is because they don’t teach just secular subjects, that they teach all subjects through the lens of their religion. … [E]ven their science courses are limited in their reach because of their belief in certain — or disbelief in certain — in certain theories of science.” (Note that Sotomayor herself benefitted from a parochial school education at Blessed Sacrament School in the Bronx.)
Perhaps the most stunning admission of the day came from Maine’s Deputy Attorney General when describing the “defining feature” of the state’s public education. It wasn’t academic rigor, citizenship or basic life or vocational skills. Instead, he said that “the most important feature” of public education is that it is “religiously neutral.”
Justice Thomas’ response was withering: “Shouldn’t your interest be in academic subjects?”
The Court will likely announce its decision at the end of the Term this summer. In the light of the Court’s recent precedent requiring the fair treatment of religious organizations in the receipt of public benefits, including in school choice programs, a win for the Carson parents is in the cards.
Andrea Picciotti-Bayer: © 2021 EWTN News, Inc. Reprinted with permission from the National Catholic Register – www.ncregister.com.