The Supreme Court is seen at dusk in Washington, Oct. 22, 2021. Credit: AP Photo/J. Scott Applewhite, File

A case over public funding for religious schools in Maine is expected to reveal the current U.S. Supreme Court’s thinking on the separation of church and state.

The justices will hear oral arguments remotely in Carson v. Makin on Dec. 8. The case has drawn a slew of “friend of the court briefs” on both sides.

As Maine defends the nearly 40-year-old state law before the justices, it will have the support of the Biden administration after the court earlier this month allowed Elizabeth Prelogar, solicitor general for the United States and a recently confirmed Biden appointee, time to support the state’s arguments in court. In 2019, then-President Donald Trump’s Justice Department backed the families challenging the law.

Few cases from Maine make it onto the docket of the nation’s highest court. While the court’s conservative wing and the justices’ interest in cases involving religion have grown in recent years, the chances that the Maine case would end up before the court were still small. Justices agree to consider just one out of every 100 cases they are asked to review.

The case, filed in federal court in Bangor in 2018, challenges a state law under which towns without public high schools pay tuition so local students can attend a public or private school of their choice in another community as long as it’s not a religious school.

The three families’ lawsuit sought public tuition for their children to attend Bangor Christian Schools and Temple Academy in Waterville. A federal judge in Maine ruled for the state in June 2019 and the 1st U.S. Circuit Court of Appeals upheld his decision.

The legal question hinges on whether Maine is, in practice, barring public money from going to a school based on its religious status or because it would use the money to teach religion.

 “It is not the religious status of an organization that determines whether they are eligible to receive public funds, but the use to which they will put those funds that dictates the result,” the Maine Attorney General’s office, which is defending the state law, said in the brief it filed in Washington, D.C. “In excluding sectarian schools, Maine is declining to fund explicitly religious activity that is inconsistent with a free public education.”

Lawyers for the the Institute for Justice and the First Liberty Institute, which represents the Maine parents, argued in its brief that the state’s tuition law is discriminatory.

“Maine’s sectarian exclusion discriminates against families who are eligible for the tuition assistance program and believe that a religious education is the best option for their child,” the brief said. “The exclusion forces such families to choose between a public benefit to which they are entitled and their right to send their child to a religious school.”

The case has drawn the attention of legal scholars.

In an article for the Atlantic magazineKimberly Wehle, a professor of law at the University of Baltimore, warned that “if a fractured court winds up mandating the use of public education funds to teach ‘a thoroughly Christian and Biblical worldview’ under these circumstances, the obliteration of America’s long-standing separation of Church and state has begun.”

The court is not expected to issue a decision in the case until next spring.