The Supreme Court’s Next Battle: Maine’s State-Sponsored Atheism

This past December, the Supreme Court heard oral arguments in Carson v. Makin. The case involves Maine’s tuition assistance program, which subsidizes tuition for private and public schools, but prohibits funding for “sectarian” religious schools. In other words, Maine taxpayer dollars can fund schools that merely have a religious status, but cannot go to schools that actively teach religious doctrine.

Originally, Maine’s tuition program was designed to serve students living in rural areas, where secondary schools do not operate. In 1982, the law was changed to exclude religious schools that do not offer a secular education. This comes as no surprise, given Maine’s high percentage of adults who identify as non-religious, and their fierce defense of separation of church and state. But this does not give Maine free-reign to plunder the right to religious free-exercise found in the first amendment to the Constitution. By making arbitrary distinctions between religious status and religious use for its school vouchers, Maine is (in effect) discriminating against religion.

Nevertheless, some would argue that the establishment clause of the first amendment ensures the separation of church and state. For this reason, defenders of Maine’s voucher program often cite the establishment clause as evidence that religious schools should be excluded. However, in Zelman v. Simmons Harris, the Supreme Court found that indirectly providing school vouchers, including for religious schools, to parents and students did not violate the establishment clause, because parents still have a choice in deciding whether to attend those religious schools. In Maine, this is no different. Maine may be hesitant to violate the separation of church and state, because any endorsement of religion would conjure up images of a theocratic, repressive state. This logic is the most flawed, however, because offering students the option to attend religious schools is not forcing religion down anyone’s throat. Instead, it is simply giving citizens the freedom of choice.

Furthermore, by providing vouchers to religious schools, Maine is in no way endorsing a religion, nor is it favoring religion over atheism. Maine would still be funding a diverse and pluralistic mix of schools, whether they be religious or non-religious. Therefore, a voucher program which included religious schools would not run afoul of the establishment clause, because it would not favor one religion over another, and it would still incorporate both religious and non-religious schools.

The last argument one might pose is that taxpayers should not foot the bill for religious institutions. But in Espinoza v. Montana Department of Revenue, the Supreme Court found that a taxpayer-funded voucher program could not exclude religious schools with a “religious status”. From this, it is apparent that states must provide school vouchers to all types of schools, even those which are religious. By extension, a voucher program for schools that teach a religious curriculum would also be acceptable, and it would keep with legal precedent.

This time around, the Supreme Court seems poised to uphold religious freedom, and for good reason. The court recognizes that a strict adherence to the establishment clause would create an unintended consequence of violating the free-exercise clause. In Maine’s case, this is manifested in the voucher program. By remaining religiously neutral, the state actually favors atheism over religious exercise. This becomes an acute problem when one factor in the rural location of the voucher’s recipients, which can make the travel to school prohibitively difficult if there is no state assistance available. If the state of Maine chooses to withhold tuition assistance for students wanting to attend religious schools, it leaves them with few alternatives to pursue a religious education. By leaving students to shoulder this burden, the state deprives students of their right to the free-exercise of religion, and unfairly discriminates against those who wish to receive religious instruction.

Author: Connor Wasik

The views expressed are the author's alone and do not represent the official position of the GWCRs.