There are as many visions of education as there are views on the good life, and the government should not be in the business of deciding  between them. That has long been our view, and it looks like it might be gaining ground at the Supreme Court. The Washington Post reports that the Nine are likely to rule that government vouchers can be used for instruction at sectarian schools, a breakthrough for religious liberty.

The case, Carson v. Makin, turns on a law in Maine that allows the state to pay for pupils to be educated at private schools if no public schools are within reasonable range. A suit was filed to compel the Pinetree State to extend that remit to sectarian schools. While lower courts have thus far evinced skepticism, the high court appeared receptive during oral arguments in December. This could portend a decision this summer. 

In 2002, the high court, in Zelman v. Simmons-Harris, upheld an Ohio law allowing the use of vouchers to attend schools of parents’ choice, including religious ones. In 2017, the court, in Trinity Lutheran v. Comer, held that a state grant open to all could not be denied to a church because “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.” 

In 2020, in Espinoza v. Montana Department of Revenue, the Nine held that “a State need not subsidize private education. Once a State decides to do so, though, it cannot disqualify some private schools solely because they are religious.” That logic animated the decision that Montana’s disqualification of religious schools from a tax credit voucher program violated the First Amendment. Momentum is with those who seek schooling tinctured with faith. 

Carson v. Makin holds out the promise of an even greater advance — the requirement that states use taxpayer funds to pay for religious schools, including the costs of teaching sectarian subjects. While Espinoza laid the groundwork for this challenge, the earlier case did not decide whether state monies could go not just to parents who opt for religious schools, but to fund the teaching of sacred subjects themselves.

The lawyer representing the parents challenging Maine’s edict argued for the court to erase distinction between allowing parents to use funds to pay for religious school and using those funds to subsidize the teaching of religion itself. As he put it, “religious schools teach religion. It is part of what they do. It is also part of who they are.” For an area of jurisprudence too often fogged with balancing tests, it was a refreshing moment of clarity. 

Let us pray that the court seizes the moment. We take seriously the Framers’ wariness of  the establishment of a state religion, and recall the emphasis with which religious tests for office are proscribed by the national parchment. Liberty, however, is also vouchsafed to us, and a school voucher program with strings attached, boxed in by regulations and directives, is a constriction on free exercise.