Two Maine families went to court, arguing that the exclusion of schools that provide religious instruction violates the First Amendment’s free exercise clause. On Tuesday, the justices agreed. Roberts suggested that the court’s decision was an “unremarkable” application of prior decisions in two other recent cases (both of which Roberts wrote): Trinity Lutheran Church v. Comer, in which the justices ruled that Missouri could not exclude a church from a program to provide grants to non-profits to install playgrounds made from recycled tires, and Espinoza v. Montana Department of Revenue, holding that if states opt to subsidize private education, they cannot exclude private schools from receiving those funds simply because they are religious.
In this case, Roberts explained, Maine pays tuition for some students to attend private schools, as “long as the schools are not religious.” “That,” Roberts stressed, “is discrimination against religion.” It does not matter, Roberts continued, that the Maine program was intended to provide students with the equivalent of a free public education, which is secular. The focus of the program, Roberts reasoned, is providing a benefit – tuition to attend a public or private school – rather than providing the equivalent of the education that students would receive in public schools. Indeed, Roberts observed, private schools that are eligible for the tuition benefit are not required to use the same curriculum as public schools, or even to use certified teachers. He suggested that the state’s argument was circular: “Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools.”
Roberts similarly rejected the state’s argument that the tuition-assistance program does not violate the Constitution because it only bars benefits from going to schools that provide religious instruction. Although Trinity Lutheranand Espinoza focused on organizations’ religious status (rather than on whether the organizations would be using government funds for religious purposes), those rulings did not hold that states could make funding for private schools hinge on whether the schools provide religious instruction, Roberts explained. To the contrary, Roberts indicated, there is no real distinction between a school’s religious status and its use of funds for religious purposes.