David Carson and his daughter, Olivia Carson, of Glenburn stand of the steps of the U.S. Supreme Court on Wednesday. Justices heard oral arguments in a case the Carson family brought challenging Maine's ban on public funding for religious schools. Credit: Courtesy of the Institute for Justice

A decision by the U.S. Supreme Court that declares Maine’s ban of public funding for religious schools unconstitutional would have a limited direct impact in the state. But such a ruling could be the death knell for provisions in three dozen other states that keep state funding from flowing to private religious schools.

The Supreme Court on Wednesday heard a challenge from two sets of Maine parents to a state law that bars families from using public tuition dollars from local school districts to attend religious schools. The court’s conservative 6-3 majority was skeptical of the state’s defense of the 40-year-old law, and legal observers predicted a loss for Maine when the high court rules in the spring.

The case, Carson v. Makin, challenges a state law under which districts 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. At issue in the case is whether Maine is barring funds from going to religious schools because they would use the money for religious purposes or simply because they are religiously affiliated. Legal scholars refer to this as a status vs. use distinction.

A Supreme Court ruling that strikes down the Maine law wouldn’t apply directly to many students here.

Maine and Vermont are the only states with such tuitioning arrangements, according to briefs filed with the Supreme Court. In Maine, about 4,500 students — about 2.5 percent of the public school population — attended private schools with public funds in the 2017-18 school year. Almost all attended the “Big 11” schools such as John Bapst Memorial High School in Bangor, whose students predominantly receive public subsidies to attend.

If the Supreme Court ruled in favor of the families challenging Maine’s law, the ruling may not even directly help them.

The families suing the state sought public tuition so their children could attend Bangor Christian Schools and Temple Academy in Waterville.

But those schools said in depositions submitted to the Supreme Court that they wouldn’t accept public funds because they would have to comply with the Maine Human Rights Act. An amendment to that law that took effect this fall prohibits religious schools that accept public funds from discriminating against LGBTQ students and employees. The Roman Catholic Diocese has not said whether it would accept public funds for its schools. Historically, the diocese has opposed protections for LGBTQ residents and same-sex marriage.

Plus, the daughter of one set of parents suing the state — Olivia Carson, whose parents live in Glenburn and sought public tuition so she could attend Bangor Christian Schools — has already graduated.

The broader effects could be felt in the 37 states with so-called Blaine Amendments in their state constitutions.

Efforts to prohibit government funding of religious schools date back to the late 19th century, when Maine congressman James G. Blaine advocated for a constitutional amendment banning such funding. Opposition to such schools at the time was largely rooted in anti-Catholicism rather than a desire for secular education.

The provision never became part of the U.S. Constitution, but 37 states included similar provisions in their own constitutions. Maine remains one of the 13 states without one.

Two previous U.S. Supreme Court rulings — Espinoza v. Montana Department of Revenue and Trinity Lutheran v. Comer — have already chipped away at Blaine amendments.

They “have been on life support since Trinity Lutheran, only sustained by the status/use distinction,” Joshua Dunn, an expert on law and education, wrote Wednesday in the journal Education Next. A ruling overturning Maine’s law “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.”

In the Trinity Lutheran case, decided in 2017, the Supreme Court held that a Missouri program that denied a playground resurfacing grant to a Trinity Lutheran Church’s school, while providing grants to non-religious groups, violated the freedom of religion guaranteed by the First Amendment’s Free Exercise Clause.

But Dunn, a professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado in Colorado Springs, said that it may be a new case filed this fall in federal court in Michigan, Hile v. Michigan, that finally pulls the plug on public funding bans for religious schools.

In that case, five families are challenging Michigan’s decision to keep them from using educational savings plans for tuition at religious schools. The plans allow individuals to invest after-tax income in accounts where the money grows tax-free and can be used for education expenses, including for college and K-12 education.

Michigan claims that allowing the money to be used for religious schools violates its Blaine Amendment. That case takes direct aim at the amendment, while the Maine case does not.

In determining how to let families use public tuition funds for religious schools, Maine should be able to turn to Vermont, whose almost identical program was found unconstitutional by the 2nd U.S. Circuit Court of Appeals earlier this year.

But lawmakers there are awaiting the outcome of the Maine case before implementing new arrangements.

Vermont’s Board of Education earlier this year ordered three districts to make payments for students to attend religious schools whose parents sued the state and won. The board issued recommendations on how districts should handle requests from students to attend religious schools, but rescinded them in January 2021. Those recommendations are now sealed.