Blaine Amendments prohibiting the public support of religious schools, once used to bludgeon school choice supporters during legislative debates, is dead.

Or, at least mostly dead.

A 6-3 ruling by the U.S. Supreme Court Tuesday determined that states cannot prohibit religious schools from participating in public benefit programs because they teach religious things.

Carson v. Makin follows a long line of decisions prohibiting states from interfering with, discriminating against or even promoting one religion over another. The 2020 Espinoza decision declared, “A State need not subsize private education. But once State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Despite that ruling, Maine continued to prohibit religious schools from participating in a state program that allowed public dollars to pay for private school tuition. Lawyers for Maine argued that the state was complying with Espinoza because the prohibition wasn’t against the school’s status as a religious institution, but because the religious school taught religious things.

It was a distinction without difference.

“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause,” Chief Justice John Roberts wrote for the Court’s majority.

Roberts went further, explaining that prohibiting religious schools from participating violates the U.S. Constitution’s “Free Exercise” clause:

“The State pays tuition for certain students at private schools – so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

Supreme Court Justice Sonia Sotomayor, writing a dissenting opinion, argued that the Supreme Court “continues to dismantle the wall of separation between church and state that the Framers built.”

Carson v. Makin, however, follows decades of legal precedents on government neutrality with respect to religion.

In Everson v. Board of Education (1947), the Court defined the Establishment Clause beyond simply establishing a national church by declaring the clause prohibited the aid of one religion or even all religions. But the Court still upheld public bus fare reimbursements to parents sending their children to Catholic schools because the reimbursement was available to all.

Regarding New Jersey’s publicly funded programs, the Court ruled:

“Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”

Establishment Clause jurisprudence reached its apex with Lemon v. Kurtzman (1971), which created the “Lemon Test” to determine if a program violates the Establishment Clause. The three-part test requires the program to have a secular purpose, to not advance or inhibit any particular religion, and to not excessively entangle government with religion.

In Lemon, the Court allowed state subsidies of textbooks, educational materials and even teacher salaries at private schools in Pennsylvania.

In subsequent decisions over the next half-century, the Court has taken an expanded view of religious liberty, diluting the "Lemon Test” that Justice Antonin Scalia colorfully described in Lamb's Chapel v. Center Moriches Union Free School District (1993):

“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. …

“The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely.

“Sometimes, we take a middle course, calling its three prongs ‘no more than helpful signposts.’ Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.”

Carson is the fourth significant decision this century to address the Establishment Clause with regard to education choice programs. In Zelman v. Simmons-Harris (2002), the Supreme Court held Ohio’s voucher program was neutral with respect to religion.

In Trinity Lutheran (2017), the Court argued that denying grants for playground resurfacing simply because the institution was religious violated the Free Exercise clause.

Contrary to Sotomayor’s opinion, the latest string of cases probably gets us closer to the Founder’s original intent and further from the confusion over “separation of church and state” that began with Everson in 1947.

It is worth noting that federal and state funds subsidize pre-K and college educations at religious institutions, as well as healthcare at faith-affiliated nursing homes and hospitals. The courts have always treated these options as not violating “separation of church and state” because they provide public benefits (education or care) that just happen to be run by religious organizations.

There is very little public disagreement about these religiously affiliated providers, but neither is there the equivalent of a national teachers union with millions of dollars fighting against them.

This article appeared earlier today on bangordailynews.com. You can find a link to the full court decision here.

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.

“What a difference five years makes,” Sotomayor wrote. “In 2017, I feared that the Court was ‘leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.’ Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”

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.

Those changes could come if Republicans win legislative majorities and the governor’s office this fall, but they’re more likely to come from further legal action in Maine and outside the state, according to Carroll Conley, executive director of the Christian Civic League of Maine.

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.