Maine might be changing course to avoid funding religious schools its attorney general views as “discriminatory” in the wake of yesterday’s landmark Supreme Court decision that the state itself has been engaged in “discrimination against religion.”

The Court ruled that Maine’s town tuitioning program, which subsidizes education for rural Maine families, was unconstitutional because it excluded religious schools. The court did not rule that Maine must include religious schools. If it subsidizes tuition for any private schools, though, it must not exclude religious ones.

About 5,000 students in Maine live in rural areas without a local public school, so the program provides assistance to these families to enroll in private schools. Families, until yesterday’s ruling, could not use the vouchers to attend “sectarian” schools — schools with mandatory religious instruction or prayer.

The lawsuit was filed by two rural families seeking to enroll their children in Christian schools in Maine — Temple Academy and Bangor Christian Schools. 

The court ruled yesterday that Maine was discriminating against religious families and religion itself, in violation of the First Amendment. States, wrote Chief Justice Roberts in the majority opinion, cannot “exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.” 

The state’s attorney general, Aaron Frey, released a statement expressing “his disappointment” with the ruling in Carson v. Makin and indicated in a later interview with the Portland Press Herald that the state might end the tuition assistance program to avoid funding religious schools.

Mr. Frey said in his statement that the court’s ruling might mandate Maine to pay for a religious education that “is inimical to public education.” He was apparently referring to the two schools which the petitioners sought to send their children to — Temple Academy and Bangor Christian Schools. 

“They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff,” Mr. Frey said. “One school teaches children that the husband is to be the leader of the household.”

The schools did not immediately respond to requests for comment.

Mr. Frey called upon the governor and the state legislature to amend the town tuitioning program to “ensure that public money is not used to promote discrimination, intolerance, and bigotry.”

One policy option to this end was clearly spelled out in the Supreme Court’s decision, which stated that Maine was under no obligation to fund private education altogether. A “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” 

The decision noted that the state could eliminate the school choice program altogether if it does not wish to fund religious schools. Maine could remedy the circumstances that led to publicly funded private school enrollment by building additional public schools, including state-run boarding schools and fully-remote schools, or improving transportation to existing schools.

“That would mean families in rural places that have historically been able to choose where they’ll send their children to get a public education could lose that right,” Mr. Frey told the Portland Press Herald. The state, however, might not continue the program “if it means we have to put up with discriminatory practices to do it.”

The legislature could also amend the tuition assistance program and redefine school eligibility, as it did in 1981. Families were previously allowed to use the tuition assistance to enroll in religious schools. A 1980 opinion by the state’s attorney general at the time, James Tierney, expressed concerns about potential violations of the First Amendment’s establishment clause. The legislature subsequently revised the law to exclude schools with religious instructions.

Even after yesterday’s ruling, however, students may not be allowed to enroll in these schools — and other religious schools — because they may not be compliant with the Maine Human Rights Act, which prohibits discrimination against protected classes in publicly funded programs.

Mr. Frey told the Portland Press Herald that the schools named in the lawsuit discriminate against gay and transgender students and staff, and at least one teaches traditional gender roles, which could be construed as discriminatory toward women.

The court acknowledged the potential conflict between religious liberties and the state’s human rights law in oral arguments but did not address the issue in its decision.

Mr. Frey’s statement aligns with concerns raised by the three dissenting justices. Justices Kagan and Sotomayor raised questions about funding for what Justice Kagan called “proudly discriminatory” schools in oral arguments.

Justice Breyer, in his dissent, warned about potential strife if public funding went to religious institutions, quoting Thomas Jefferson: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”

“Public funds cannot be used to attend a private school that promotes religion because such schools, by definition, do not provide the equivalent of a public education,” the statement from the attorney general’s office said.

This argument echoed one made by Maine’s chief deputy attorney general, Christopher Taub, in oral arguments. Parents could only use the funds to enroll their children in schools that provided the “rough equivalent” of a public school education.

Mr. Taub argued that “the most significant and defining feature” of public education is its religious neutrality. “The very defining feature of a public school is that it doesn’t have mandatory prayer,” he told the justices.

Maine’s argument puts the Warren court’s rulings against prayer and bible study in public schools at the heart of what defines a public school. Prior to those rulings, in 1962 and 1963 respectively, many public schools had sponsored religious activities.

The attorney general’s response to the court’s ruling is yet another chapter in Maine’s history of hostility toward religious education. 

A former Speaker of the House, James Blaine, represented the Pine Tree State in the Senate when in 1875 he introduced a constitutional amendment that would deny public funding to any “sectarian” school. The so-called Blaine Amendment was rooted in 19th-century anti-Catholic bigotry.

While the Blaine Amendment failed, 37 states instituted similar laws prohibiting funding of religious schools. Timothy Cardinal Dolan of the Archdiocese of New York and a Spokane, Washington bishop, Thomas Daly, noted yesterday that “these laws have nothing to do with government neutrality towards religion. Rather, they are expressions of hostility toward Catholics.”

A representative from the Maine attorney general’s office told the Sun that they will be working with the governor, the state Department of Education, and the legislature “to determine what, if anything needs to be done to comply with the decision.”