Some parents in Maine are trying to turn up the heat on Justice Kennedy in respect of education and the First Amendment. The parents have filed a petition asking the Supreme Court to overturn Maine’s relatively recent exclusion of religious schools from its century-old school choice program. If the court takes up the case, known as Anderson v. Durham School Department, the justices will have to clarify their earlier precedents on the issue. Justice Kennedy could be the swing vote.

Since 1879, small towns in Maine without their own public schools have paid tuition for resident children to attend a public or private school of their choice. For the first 100 years, students also had the option of using that tax money to attend religious institutions. That changed only in 1980, when the state’s attorney general issued an opinion opposing the policy, relying on a faulty interpretation of the First Amendment’s ban on establishment of religion. Based on that opinion, the legislature changed the law. The parents argue that since the flawed opinion was the basis for excluding religious schools, the state doesn’t have the reasonable grounds required by First Amendment precedent to discriminate against religious schools. If the Supreme Court agrees with them, the effect would be to outlaw discrimination against religious schools in voucher programs that include any other private schools.

If the justices take this case, they can clear up any lingering confusion they created in two recent voucher rulings. In Zelman v. Simmons-Harris in 2002, the court upheld Cleveland’s voucher program even though most participants chose religious schools; Justices Rehnquist, O’Connor, Scalia, Kennedy, and Thomas voted in the majority. In Locke v. Davey in 2004, the justices ruled that Washington state could block a college student from using a state merit scholarship to study for the ministry. Justices Rehnquist, O’Connor, Kennedy, Souter, Ginsburg, and Breyer were in that majority. Assuming Justices Roberts and Alito might agree with Justices Thomas and Scalia in dissenting from Locke’s restrictive judgment, it appears Justice Kennedy could be the swing vote deciding how expansively to read Zelman and how narrowly to apply Locke.

Depending on where Justice Kennedy drew that line, the impact could be dramatic. A ruling in favor of the Maine parents would be a back-door way of eviscerating so-called Blaine Amendments, bigoted anti-Catholic measures in 37 state constitutions, including New York’s. (Maine was James Blaine’s home state but never passed its own Blaine Amendment.) Whether the justices opt to hear the case and when they might decide whether to do so are open questions. Not open to question, however, is that it’s long past time to roll back hostility to religion masquerading as adherence to the First Amendment.