David Carson and his daughter, Olivia Carson, of Glenburn stand of the steps of the U.S. Supreme Court on Dec. 8, 2021. Justices heard oral arguments in a case the Carson family brought challenging Maine's ban on public funding for religious schools. Credit: Courtesy of the Institute for Justice

The U.S. Supreme Court appears primed to overturn Maine’s ban on public funding for religious schools later this spring. But money won’t start flowing to Catholic and evangelical schools without changes to other state laws that advocates for religious schools are now eyeing.

Those changes could come if Republicans win legislative majorities and the governor’s office this fall, but they’re more likely to come from further legal action in Maine and outside the state, according to Carroll Conley, executive director of the Christian Civic League of Maine.

The league sponsored a meeting earlier this week to discuss the next steps in removing obstacles to public funding for religious schools in Maine.

The group’s preparations signal optimism from religious conservatives that a Supreme Court with a 6-3 conservative majority will rule in religious schools’ favor when it decides the Maine case. They also signal the potential for political battles over the state’s anti-discrimination laws as religious school advocates try to make it easier for public funds to flow to religious schools.

“We didn’t want to wait until June, when the decision is expected, to begin talking about what the next steps might be,” said Conley, a former principal at Bangor Christian Schools. “We want educational opportunities to be available to everyone regardless of their financial situation.”

While religious conservatives prepare for the ruling, the state’s Department of Education won’t come up with guidelines for what religious schools would need to do to receive public funds until after the court announces its decision, according to a department spokesperson.

The case, Carson v. Makin, challenges a state law under which districts without public high schools pay tuition so local students can attend a public or private school of their choice in another community, as long as it’s not a religious school. At issue is whether Maine is barring funds from going to religious schools because they would use the money for religious purposes or simply because they are religiously affiliated.

Maine allowed public funding for religious schools until the early 1980s. It stopped after Attorney General Richard Cohen, a Republican, issued an opinion finding that public funding for religious schools violated the First Amendment.

A Supreme Court ruling that strikes down the Maine ban that has been in place ever since wouldn’t apply directly to many students here without changes to other laws.

That’s because of the small number of students who attend private schools with public tuition funds — about 4,500 students, or 2.5 percent of the public school population, in the 2017-18 school year. But it’s also because an amendment to Maine’s Human Rights Act that took effect last fall prohibits religious schools that accept public funds from discriminating against LGBTQ students and employees.

The families suing the state sought public tuition so their children could attend Bangor Christian Schools and Temple Academy in Waterville.

Those schools said in depositions submitted to the Supreme Court that they would not accept tuition money if it meant they would have to abide by the anti-LGBTQ discrimination provision.

The Roman Catholic Diocese of Portland has not said whether it would accept public funds for its schools. Historically, the diocese has opposed protections for LGBTQ residents and same-sex marriage.

While removing that provision from state law is a possibility for religious school advocates, removing protections for LGBTQ Mainers from the Maine Human Rights Act would be an uphill battle in a state where such protections have been in place for so long and have broad electoral support.

Another possibility for allowing public funds for religious schools, Conley said, is applying a federal judge’s ruling in a Maryland case to Maine.

Maryland’s school voucher program forbids discrimination in admissions based on sexual orientation.

But a recent decision by a federal judge in Baltimore found that the state in 2018 had illegally eliminated Bethel Christian Academy from the program based not on its admissions policy but on statements in its student handbook. The handbook said that the school’s beliefs are that marriage can only be between a man and a woman and that God assigns a gender to a child at birth.

Eliminating the school from the voucher program based on those statements violated the academy’s 1st Amendment right to free speech, the Maryland judge ruled in December. Maryland could appeal the case to the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, and it could eventually end up before the Supreme Court.

Conley said he and others are hopeful the decision could be applied to Maine if it is upheld.

Another case the Christian Civic League and religious-based legal groups are watching is making its way through the courts in Michigan.

In that case, five families are challenging Michigan’s decision to keep them from using educational savings plans for tuition at religious schools. The plans allow individuals to invest after-tax income in accounts in which the money grows tax-free and can be used for education expenses, including for college and K-12 education.

Michigan claims that allowing the money to flow to religious schools violates its Blaine Amendment, which 37 states have in their constitutions prohibiting public funds for religious schools. The Michigan case takes direct aim at the amendment, while the Maine case does not.

Maine remains one of the 13 states without such an amendment, but a broad ruling in the Michigan case that strikes down Blaine amendments could apply to Maine, according to Conley.

Religious conservatives expect and are preparing for opposition to public funding for religious schools, Conley said.

“We assume there will be legal resistance to this effort in Maine and less conservative states,” he said.