Last week, the Supreme Court ruled that taxpayers in Maine had to cover the costs of private religious education even when Christian indoctrination was front and center. It was a horrible decision loudly derided by church/state separation advocates. But state lawmakers may have found a way to nullify its effects.
Carson v. Makin involved a voucher program that allowed students in rural parts of Maine to have access to free education, even if that meant attending a private school. The state already said it would cover private school tuition, even at church-run schools, as long as the education students received was secular in nature. But a lawsuit was filed by parents who wanted to send their kids to Christian schools that, among other things, promoted Creationism and discriminating against LGBTQ people in hiring. The Supreme Court essentially said the state was forbidden from discriminating against those schools on the basis of religion… which meant taxpayers would theoretically have to pay for religious indoctrination. As Justice Sonia Sotomayor put it in her dissent, “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”
But here’s the amazing thing: Lawmakers in Maine anticipated this outcome a while back, and they recently took action to make the Supreme Court’s decision toothless—at least in their state. Simply put, rather than stick with the previous law that banned money from going to explicitly religious schools, which was already in legal jeopardy, they passed a new law forbidding any taxpayer dollars from going to schools that discriminate against people on the basis of sexual orientation or gender identity. (More specifically, they expanded their anti-discrimination law to protect LGBTQ people—including at schools that are part of the voucher program.)
See? No religion involved. And yet it forces the Christian schools at the center of this legal battle, Temple Academy in Waterville and Bangor Christian Schools, to make a decision about what matters more: taxpayer-funded tuition dollars or faith-based bigotry?
Law professor Aaron Tang suggests the Maine workaround is a brilliant maneuver:
By enacting its law, Maine was able to assure its taxpayers that they will not be complicit in discriminating against L.G.B.T.Q. students, because private schools that discriminate will be ineligible for public funds. The law will limit church-state entanglement, assuming other religious schools decline funding for the same reasons as the schools in Carson. And although nondiscriminatory private schools can still receive public funds, Maine can eliminate that program at any point — a fact the court conceded.
That may solve the problem in Maine, though future lawsuits are possible. But that doesn’t entirely nullify the Supreme Court’s ruling because there are several other states with similar voucher programs (i.e. funding private schools with taxpayer dollars) that do not have anti-discrimination clauses built into the law. The responsibility now shifts to lawmakers in those states to make sure Christian bigotry is not rewarded with their state’s money.
There’s also a broader lesson here. No matter how many awful decisions this right-wing Supreme Court makes, it’s possible for states with sensible lawmakers to work around the problem. We’re already seeing that in action when it comes to reproductive freedom. It’s not easy and it’s not going to be the case everywhere, but an ultra-conservative Court doesn’t always have to have the last word if lawmakers take swift action.