A few school districts in rural Maine are so sparsely populated that the state has decided not to build high schools in them. But Maine is committed to providing free K-12 education for every child in the state, so it initiated a tuition-assistance program whereby, in those districts, it gives money to children’s families that enable them to pay tuition at private high schools.

But not just any private schools. Maine’s tuition assistance program provides that “(a) private school may be approved for the receipt of public funds for tuition purposes only if it ... is a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

Two families who wished to send their children to parochial schools sued the state of Maine, alleging that the above-mentioned regulation was unconstitutional. That case came before the U.S. Supreme Court in December 2021.

Lawyers for the families claimed that Maine’s law violated both parts of the religion section of the Constitution’s First Amendment — the “free exercise” and the “establishment” clauses — and also violated the “equal protection” clause of the 14th Amendment. Their legal brief asserts that “Maine’s sectarian exclusion discriminates against families who are eligible for the tuition assistance program and believe that a religious education is the best option for their child. The exclusion forces such families to choose between a public benefit to which they are entitled and their right to send their child to a religious school.”

As for the Establishment Clause, “Maine’s exclusion also violates the Establishment Clause. It lacks a secular purpose, has a principal effect of inhibiting religion and, perhaps most problematically, requires excessive government entanglement with religion.”

Rather than pursue the legal argumentation in this case, which involves extended discussions of previous Supreme Court decisions, I would like to present a common-sense defense of Maine’s policy.

Given the problem Maine faced, the obvious solution was the one it chose: to make use of private schools and use state money to cover the cost of tuition. But it’s also obvious that Maine would wish those schools to be, insofar as possible, equivalent to the public secondary schools that it already has.

Maine uses state inspectors to ensure that equivalency. They closely examine every private school that seeks to qualify for the tuition-assistance program. The school must have roughly the same curriculum as an average public secondary school, employ teachers with approximately equal training and experience, and abide by the same non-discriminatory rules that all public schools are required to follow.

It may seem that Maine rules out parochial schools entirely, but that’s not so. A religious sect could easily create a school that met the state’s requirements and be eligible for Maine’s program, but, not unsurprisingly, parochial schools usually fail the equivalency test. For one thing, their curricula almost always include required classes in religious instruction, and their religious beliefs often affect the way in which they teach non-religious subjects, such as the sciences.

Moreover, religious schools often fail to qualify because they do not observe the state’s non-discrimination rules. Several parochial schools refuse to admit gay students or hire gay teachers, for example.

But it is religious instruction that creates the biggest barrier to qualification and not merely because Maine’s public schools are all secular. Rather, it’s that any state funding of a parochial school would conflict with the U.S. Constitution, which forbids governments to “establish,” i.e. to materially favor, any particular religion (or even religion in general). If a state were to knowingly (however indirectly) fund a religious school with taxpayers’ money, it would clearly be violating the “establishment” clause — not to mention infuriating any citizen who was of a different religion, or an atheist. (Incidentally, if it’s any comfort to the religious, I’m quite sure that Maine would find an atheist school equally unacceptable — that required class on “Debunking the Bible” would probably do the trick all by itself.)

I am fully aware that state laws forbid discrimination based upon a person’s religious beliefs, but Maine is not refusing to pay for tuition to religious schools because those schools identify themselves as Baptist or Catholic, nor because the schools’ students are of a particular faith; it does so because those schools do not conform to the state standards for public secondary schools and seek to inculcate a particular sect’s religious beliefs by means of classes that all students must attend. There is absolutely no constitutional way in which any state could help fund a religious school’s efforts to accomplish that aim.

It’s worth noting that a great many representatives of organized religion in this country agree with Maine’s position. The legal brief submitted by friends of the court in defense of Maine’s practice was signed not only by the ACLU and Americans United for Separation of Church and State, but also by the Baptist Joint Committee for Religious Liberty; Catholics for Choice; the Central Conference of American Rabbis; the Evangelical Lutheran Church in America; the Hindu American Foundation; the Methodist Federation for Social Action; and the Sikh Coalition, among others. Churches know all too well that whenever the government provides funds, it acquires some control.

Allow me to interject two final opinions on this matter, from an atheist’s perspective: 1) I believe that a student educated in a secular high school will — other things being equal — acquire a more accurate understanding of the world as it is, than a student in a religious high school, and therefore become a better, more knowledgeable citizen; 2) I contend that it is no benefit to society when parents try to cocoon a child within the family religion and forestall that child’s encounter with peers who espouse different faiths or no faith at all. While I don’t dispute that the Constitution protects parents’ right to practice their faith, I question whether such practice legitimately includes going to any lengths to impose their faith upon their children.

Leonard Hitchcock of Pocatello is an alumnus of the University of Iowa and did graduate work at Claremont Graduate University and the University of California, San Diego. He taught philosophy in California and Arizona for 15 years. In 1985, after earning a library degree, he was hired by Idaho State University. He retired from ISU’s Oboler Library in 2006.