Tuesday’s opinion reinforces Roberts’ conservative bona fides, even as he regularly tries to find middle ground to enhance the court’s institutionalism and image.
In his opinion on Tuesday for the six justices on the right, Roberts insisted the ruling simply flowed from the principles applied in the 2017 and 2020 cases.
But unlike those limited rulings in cases from Missouri and then Montana, the Maine decision specifically involves funds that would be used for religious education, and it demonstrates as forcefully as ever that state rules that might have been regarded as neutral in the past can be invalidated as religiously discriminatory.
The earlier decisions authored by Roberts forbade states from excluding religious schools for public funding based solely on their religious “status” or “character.” The new case tested whether a state that subsidizes private education could withhold funds based on a school’s religious “use.” And in requiring public money to be used for instruction that promotes religion, the court generated a raft of new questions about the separation of church and state.
The Maine case arose at the intersection of the First Amendment’s two religion clauses, prohibiting government’s “establishment of religion” and guaranteeing its “free exercise.”
The disputed program provided money for students to attend private schools in areas that lacked public high schools but excluded sectarian institutions, defined in part as those “associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated.”
The Supreme Court struck down that exclusion based on the First Amendment’s protection for the free exercise of religion. Roberts said Maine’s exclusion was based on a stricter separation of church and state than the Constitution requires.
Breyer, however, asserted that the majority “pays almost no attention to the words of the first Clause while giving almost exclusive attention to the words in the second.” He noted that the two clauses are often in tension and states have sufficient leeway to further “antiestablishment interests” by withholding money for religious schools without impinging on free exercise.
“I warned in Trinity Lutheran … that the Court’s analysis could be manipulated,” Sotomayor wrote, then added, “This Court should not have started down this path five years ago.”
Back in 2017, Roberts had declared that Missouri had unconstitutionally excluded the Trinity Lutheran Church’s Child Learning Center, based on its religious “status,” from a program that offered grants to non-profit groups for the purchase of playground surfaces made from recycled tires.
Roberts’ narrow rationale, as well as a footnote asserting that the case “involves express discrimination based on religious identity with respect to playground resurfacing,” helped draw Kagan, and, to a lesser extent, Breyer, onto the decision. (Sotomayor had dissented with the late Justice Ruth Bader Ginsburg, who was succeeded in October 2020 by Justice Amy Coney Barrett.)
On Tuesday, the chief justice demonstrated he had never been locked into the distinction.
“In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status,” he wrote. “But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.”
Rebuffing dissenters’ assertion of the importance of “government neutrality,” Roberts declared that “there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.”
He added: “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.”
Dissenters countered that nothing in the free exercise clause would “compel” Maine to give tuition aid to private schools that will use the funds to provide a religious education, and they used Roberts’ prior cases to support their position.
“(T)his Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school’s religious status—that is, its affiliation with or control by a religious organization,” Breyer said. “But we have never said that the Free Exercise Clause prohibits States from withholding funds because of the religious use to which the money will be put.”
Back in 2017, Roberts had taken pains to observe that he was not addressing “religious uses of funding.”
At the time, Justice Neil Gorsuch, joined by Justice Clarence Thomas, said Roberts’ division between religious status and religious use made no sense.
“Respectfully, I harbor doubts about the stability of such a line,” Gorsuch wrote in a concurring opinion. “Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission?”
“I worry,” Gorsuch added, “that some might mistakenly read it to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by” the ruling.
Gorsuch need not have been concerned. Roberts was getting there, although moving incrementally. Tuesday, Gorsuch and the other conservatives joined Roberts’ decision with no caveats. None of the liberals, of course, appeared tempted to join this time.