In blow to religious freedom, SCOTUS rules for the first time that a state’s tuition assistance program must fund religious education

by | Jun 22, 2022

On a 6-3 vote, the U.S. Supreme Court this week issued a troubling decision, requiring Maine to include religious schools in its government-funded tuition assistance program. Reversing the 1st U.S. Circuit Court of Appeals, Chief Justice John Roberts’ majority opinion struck down the program’s long-standing requirement that funds must be used for secular education. In its ruling, which BJC Executive Director Amanda Tyler called a “blow” to religious freedom, the Court sidestepped concerns raised by Maine officials and religious liberty advocates – including BJC –that supporting religious education with taxpayer dollars undermines historic principles of church-state separation that states should have the leeway to protect.

Chief Justice Roberts made his case by building upon two other recent church-state decisions. In Trinity Lutheran, the Court held that a church could not be excluded from a state playground refurbishment program simply because of its religious character. In Espinoza, the Court struck down a restriction barring religious schools from Montana’s tuition scholarship tax credit program. Both cases, the Chief Justice explained, highlight the principle that the Free Exercise Clause does not permit states to “withhold otherwise available public benefits from religious organizations.”

And yet the Court has never extended this principle to require taxpayer funding of distinctly religious education. In fact, the Court in 2004, in Locke v. Davey, upheld a government-funded scholarship program in Washington state that excluded religious education. What’s the difference? Chief Justice Roberts insisted that Maine’s program is different from the restriction allowed in Locke, which barred state funding for a ministry training program.

[T]he funding in Locke was intended to be used “to prepare for the ministry.”… Locke’s reasoning expressly turned on what it identified as the “historic and substantial state interest” against using “taxpayer funds to support church leaders.” Locke cannot be read beyond its narrow focus on vocational religious degrees…”

But that narrow reading leaves states little room to protect taxpayers from funding religion in any context without violating the Court’s seemingly ever-expanding Free Exercise doctrine, as Justice Sonia Sotomayor pointed out in her powerful dissent.

This Court should not have started down this path five years ago [with Trinity Lutheran].

Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.

 In a separate dissent, Justice Stephen Breyer, joined by Justice Elena Kagan and Justice Sotomayor, added:

We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.

BJC General Counsel Holly Hollman issued a statement sharply criticizing the ruling, which she noted was only the latest in a string of recent decisions undermining the institutional separation of church and state:

The Court’s decision to require Maine to fund religious instruction threatens our nation’s commitment to religious freedom and the understanding of church-state separation that protects it. A majority of justices on the Supreme Court keep ignoring the distinctive role of religion in law and society, which is best served by separating the institutions of religion and government. That separation, which Maine sought to protect, is an important part of America’s religious liberty legacy, and it’s a key principle for historic Baptists and others who have long championed religious liberty for all and public education.

Where does it end? As Justice Breyer asks, under the majority’s view, must a school district that pays for public schools now fund parents who prefer a religious education? After this decision, what religious funding can a state still deny to safeguard against entangling the taxpayer with religion?

For more on this case and its ramifications, listen to BJC’s podcast on the oral arguments and access BJC’s brief and other resources at