Can school choice exclude religious schools? High court weighs in.

Judy and Alan Gillis live in Orrington, Maine, just a few miles down the Penobscot River from this former timber hub. It’s one of more than 100 small towns in the state that don’t have their own high school. Families in these “tuitioning” towns get to choose a high school, and the town pays the bill, up to the rate allowed by the state.

The Gillises’ three oldest children accessed high school this way – two at private school. Their youngest started ninth grade at the public school in nearby Hampden. But she soon felt ostracized for her religious beliefs.

“People were calling me a homophobe and stuff,” says Isabella, who sometimes goes by Isabelle. She told a friend who came out as gay that although she disagreed with it, she still cared about her as a friend. “She cut me out. And some of her friends were like, ‘Oh, look at Isabelle, little Christian girl who hates everyone.’ So that was not fun,” she says, fidgeting with a ring as she sits cross-legged next to her dad on their L-shaped sofa.

She transferred to the nearby Bangor Christian Schools before the end of freshman year. It, too, is accredited, but a religious school is the one choice the state won’t allow the towns to pay for. Now Isabella is a senior, and her parents have been paying the tuition themselves.

That restriction, they say, amounts to religious discrimination.

The Gillises joined two other families in taking the state to court. And while their case is on federal appeal, they’re keeping a close eye on Wednesday’s United States Supreme Court hearing for another case with the same core issues: Espinoza v. Montana Department of Revenue. Low-income families in Montana say a state tax-credit scholarship was unjustly shut down simply because religious schools were among the options.

The key question in both: If a government entity allows parents to use tax dollars to pay for a school of their choice, including private schools, is it allowed to exclude religious schools? A decision in favor of the families in Montana or Maine could fundamentally alter the school choice landscape far beyond their borders.

The cases come at a time when religious people of various faiths say they feel marginalized in American society. In turn, President Donald Trump has been passing executive orders and speaking publicly to promote religious liberty, though critics say that’s primarily for Christians.

Two constitutional values hang in the balance. One is people’s right to freely exercise their religion, and another is the prohibition against the government establishing or favoring a religion.  

“This is the latest iteration of a long-running debate that we’ve had in American society about the interaction between religion and the state, and where that line is drawn,” says Mark Brewer, a University of Maine political science professor.

From Florida to Arizona, dozens of school voucher programs already include religious options. The Supreme Court ruled in 2002 that governments may include such choices if private schools are part of the program. Now the question is, must they?

“At the heart of America’s commitment to religious freedom is that government and religion are separate,” says Charles Haynes, founding director of the Religious Freedom Center at the Freedom Forum Institute in Washington. When it comes to indirect funding for nonreligious activities, the high court has said that institutions can’t be excluded just because they are religious. But “saying that there is actually a free-exercise mandate to include religious schools ... would be a sea change” in First Amendment law.

“It’s just not right.”

“Why can they teach atheism or evolution at public school, which we don’t believe, [and then] say ... they won’t pay for [the Christian school]? ... To me, it’s just discrimination,” says David Carson, his wavy brown hair pulled back by propped-up sunglasses as he takes a break from his house-construction business.

He met his wife at Bangor Christian Schools, and they didn’t think twice about enrolling their daughter there in preschool. Now she’s a high school junior – so they aren’t likely to benefit from tuition dollars even if they eventually win Carson v. Makin. But Mr. Carson says there are plenty of people in this rural state who can’t afford the $5,000 price tag of a school like theirs. “It’s just not right,” he says.

The Institute for Justice, a litigation group focused on individual liberty, challenged Maine in state court first, with no success. But it saw a new opening at the federal level when the U.S. Supreme Court ruled in 2017 that public playground-repair funding could go to the Trinity Lutheran Church.

Chief Justice John Roberts noted that “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.”

But the court stopped short of ruling more broadly on whether public money should go to more religious functions.

For its part, Maine allowed religious school choice for more than 100 years before a policy change in the early 1980s. At that time, just over 200 students were using public tuition dollars at religious schools, notes a history on the website of the Institute for Justice (IJ), which is also representing the parents in the Espinoza case.

“When a state decides to empower parents to choose the school that they believe is best for their child, to then say, but we are going to exclude religious [schools] … just strikes at the very core of our freedom of religion … and our rights as parents to choose the best educational setting for our children,” says Tim Keller, IJ’s lead attorney for the Maine families.

The U.S. Department of Justice has weighed in on behalf of the parents in both cases.

Separation of church and state

Maine and Montana officials, on the other hand, make a case for maintaining a strong separation between church and state.

“A public education system should be one that promotes diversity and tolerance and exposes children to a broad range of ideas. ... Parents certainly have the right to opt out of the public education system and send their children to religious schools, but public dollars should not be used for that purpose,” Maine Attorney General Aaron Frey said in a statement.

The American Civil Liberties Union (ACLU) and various religious and atheist organizations argue on behalf of Maine that the entanglement of public dollars with religious institutions could actually hurt those very institutions by subjecting them to government restrictions.

There is “no evidence that the state of Maine was motivated by animus against religion. ... They were motivated by legitimate anti-establishment interests of not wanting to fund religious training using tax dollars,” says Zachary Heiden, legal director at the ACLU of Maine.

Some civil rights groups say that public funds shouldn’t go to religious institutions, particularly if they discriminate in hiring and other policies on the basis of sexual orientation or other categories protected by laws in states such as Maine. And they say the curriculum at some religious schools promotes intolerance of other religious groups.

“Maine residents should never be forced to support religious education or discrimination,” said Alex Luchenitser, associate legal director of Americans United for Separation of Church and State, in a statement.

To the Gillis family, those who raise the question of discrimination are demonstrating their own form of intolerance. “They seem to be very interested in having no discrimination against certain people, ... but they’re fine with discriminating against Christians,” says Mrs. Gillis, sitting on a love seat in their living room, decorated with white and red accent pillows, family photos, and a few religious figurines.

Tax money is “all our money, and the government spends all kinds of my money on things that I don’t agree with,” Mr. Gillis says.

Maine is the second least religious state, according to a 2017 Gallup poll, with 55% identifying as nonreligious, 22% as very religious, and 22% moderately so.

Just down the road from Bangor’s public high school, Bangor Christian Schools are housed partly in the church building and partly in a brick building next door. On a flagpole between the two structures, a white flag with a cross in its blue corner sits just below the American flag. In addition to regular academic subjects, they have chapel one morning a week and Bible class once a day, Isabella says. The head of the school declined to comment while the case is pending.

Isabella says the academic work at the school is more challenging, and her grades have gone up. She appreciates having classmates who “don’t believe in the stereotypes that a lot of the people at Hampden did. ... They understand that just because you’re a Christian, you’re not a homophobe and you don’t hate people who don’t go to church.”

Maine officials argue that the religious schools haven’t said whether they would even participate in the tuition program if they could. The Carsons and Gillises say their school would, as long as they wouldn’t have to change their religion-centered policies.

Yet opening up such doors could have unintended consequences, Mr. Haynes of the Religious Freedom Center cautions: “Religious people should be careful what they ask for, because if we continue down this road ... the temptation to draw on public money is going to grow and grow and grow. ... If you look at Europe and other places in the world where they do have government funding directly of religion, it has weakened religion, in my view. It has compromised religion.”