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 conservative majority of the U.S. Supreme Court ruled Tuesday that Maine’s ban on public funding for religious schools was unconstitutional and violated the free exercise clause of the First Amendment. 

The 6-3 decision was expected based on questions from the justices at oral arguments in December and the appointment of three conservatives by former President Donald Trump.

“Maine has chosen to offer tuition assistance that parents may direct to the public or private schools of their choice,” Chief Justice John Roberts wrote in the 45-page majority opinion, adding that the law “effectively penalizes the free exercise of religion.”

“Maine’s administration of that benefit is subject to the free exercise principles governing any public benefit program — including the prohibition on denying the benefit based on a recipient’s religious exercise.” 

He was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented. 

“Today, the Court leads us to a place where separation of church and state becomes a constitutional violation,” Sotomayor wrote.

Despite concerns expressed by the Maine School Management Association and the Maine Education Association, supporters of lifting the ban don’t expect money to start flowing to religious schools without changes to other state laws that advocates for religious schools are now eyeing.

Legal changes could come if Republicans win legislative majorities and the governor’s office this fall, but they are more likely to come from legal action both in and out of Maine, according to Carroll Conley, executive director of the Christian Civic League of Maine. In the long term, the decision could reshape the relationship between governments and religious schools.

The case, Carson v. Makin, challenged 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 was whether Maine was barring funds from going to religious schools because they would use the money for religious purposes or simply because they are religiously affiliated.

The Maine Department of Education will have to come up with guidelines for what religious schools would need to do to receive public funds. The department’s spokesperson previously said it would not create guidelines until after the court’s decision was announced. 

The civic league and religious conservatives support lifting the ban and exempting religious schools from Maine Human Rights Act that protects individuals from discrimination in employment, education, housing, public accommodation and credit based on race, gender, sexual orientation or gender identity, physical or mental disability, religion, ancestry or national origin.

Catholics and evangelical Christians, which own and run Maine’s religious high schools, believe that their biblical teachings prevent them from hiring LGBTQ teachers and staff endorsing same-sex marriage.

Maine Attorney General Aaron Frey said during a Tuesday appearance on Maine Public that he was not surprised by the court’s decision, but he felt it was not consistent with his reading of the Constitution. He said the ruling will require a reevaluation of how it applies to state law.

“Frankly, it is concerning, even though we saw it coming,” the Democrat said.

Michael Bindas, a lawyer for the libertarian Institute for Justice who argued for the parents at the high court, said the court made clear Tuesday that “there is no basis for this notion that the government is able to single out and exclude religious options.”

Maine allowed public funding for religious schools until the early 1980s. It stopped after Attorney General Richard Cohen, a Republican, issued an opinion finding that public funding for religious schools ­violated the First Amendment. The ruling does not apply directly to many students here without changes to other laws. 

That’s because of the small number of students who attend private schools with public tuition funds — about 4,500 students, or 2.5 percent of the public school population, in the 2017-18 school year. But it is also because an amendment to Maine’s Human Rights Act that took effect last fall prohibits religious schools that accept public funds from discriminating against LGBTQ students and employees.

The families suing the state sought public tuition so their children could attend Bangor Christian Schools and Temple Academy in Waterville. Those schools said in depositions submitted to the Supreme Court that they would not accept tuition money if it meant they would have to abide by the anti-LGBTQ discrimination provision.

The Roman Catholic Diocese of Portland 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.

While removing that provision from state law is a possibility for religious school advocates, removing protections for LGBTQ Mainers from the Maine Human Rights Act would be an uphill battle in a state where such protections have been in place for so long and have broad electoral support.

Another possibility for allowing public funds for religious schools, Conley said, is applying a federal judge’s ruling in a Maryland case to Maine. Maryland’s school voucher program forbids discrimination in admissions based on sexual orientation.

The Associated Press contributed to this report.

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Lia Russell

Lia Russell is a reporter on the city desk for the Bangor Daily News. Send tips to LRussell@bangordailynews.com.