Maine officials are getting creative to avoid public funding of religious education in the aftermath of the Supreme Court’s Tuesday ruling against the state’s voucher program.

On Tuesday, the court ruled that the state’s voucher program unconstitutionally discriminated against religious families — and religion itself — in Carson v. Makin. Maine’s town tuitioning program has long provided vouchers to families living in rural school districts without public high schools of their own. The program serves about 5,000 students in such areas.

The state allowed families to spend the vouchers at accredited private schools — provided the school was not religious. Two religious families, the Carsons and the Nelsons, sued the state for the right to use the subsidy to send their children to the school of their choice.

“The State pays tuition for certain students at private schools — so long as the schools are not religious,” wrote Chief Justice Roberts in the majority opinion. “That is discrimination against religion.” A state “need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Now, liberals are scrambling to find a solution that would allow them to comply with the court’s ruling and educate rural students — without funding religious schools. A new solution, however, might not be necessary.

Earlier this week, Maine’s attorney general expressed concern that funding religious schools would be funding “bigotry” due to the school’s beliefs in traditional gender roles and families. Both Bangor Christian Schools and Temple Academy view homosexuality and transgender identities as antithetical to biblical teachings, according to court filings. Presenting as transgender or gay could lead to expulsion from either school, if students continue to identify as such after counseling.

“They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff,” the attorney general, Aaron Frey, said. 

Mr. Frey appealed to state policymakers to revise the town tuitioning program to “ensure that public money is not used to promote discrimination, intolerance, and bigotry.”

Per the court’s suggestion, Mr. Frey floated ending the voucher program to avoid funding schools whose religious beliefs do not allow them to accept gay and transgender students. The state, he said, might not continue the program “if it means we have to put up with discriminatory practices to do it.”

“That would mean families in rural places that have historically been able to choose where they’ll send their children to get a public education could lose that right,” Mr. Frey said.

The executive director of the Maine Association of School Boards, Steven Bailey, suggests to the Sun that individual rural school districts could end the voucher program in favor of contracts with specific education providers.

“Instead of choice, they would actually create contracts with schools that would be within their transportation range,” Mr. Bailey says. “That would take some choice of possibilities away, but it also would provide for a more concise control over how public dollars are being spent.”

Mr. Bailey’s organization, the MASB, filed an amicus briefing in support of the state’s position. 

“Petitioners seek to hijack Maine’s tuition law and force Maine taxpayers to fund religious education for their children,” the briefing said. “Such extension of public funding to religious education is not required by the Constitution, and it will divert scarce public resources from Maine’s system of public education.”

The petitioners and their attorney responded by arguing that the vouchers could be put toward boarding schools, such as Philips Exeter Academy, and other private schools whose offerings differ from the standard public school.

While Mssrs. Bailey and Frey, and their allies, advocate for changes, one might not be necessary to achieve their goal of avoiding funding religious institutions.

In a New York Times op-ed, a law professor and former clerk to Justice Sotomayor argues that Maine has already “outmaneuver[ed]” the Supreme Court.

“Anticipating this week’s decision, Maine lawmakers enacted a crucial amendment to the state’s anti-discrimination law last year in order to counteract the expected ruling,” Aaron Tang writes in the Times. 

In 2021, Maine’s state legislature expanded Maine’s Human Rights Act to deny public funding to private educational institutions that discriminate against protected classes. 

“By enacting its law, Maine was able to assure its taxpayers that they will not be complicit in discriminating against L.G.B.T.Q. students, because private schools that discriminate will be ineligible for public funds,” Mr. Tang writes.

Mr. Tang praise Maine’s legislature for putting forward a “promising path” that other states — and even the Biden administration — should emulate in the aftermath of both the court’s ruling on guns and abortions.

A religious liberties scholar, Michael Helfand, says that constitutional law is still unclear about how anti-discrimination laws, such as Maine’s Human Rights Act, will affect funding in the aftermath of Carson.

“Anti-discrimination laws are going to have to be neutral and applied across the board for them them to be upheld as conditions on government funding — and that’s not always be the case,” Mr. Helfand says.

“There’s good reason to think that if the conditions put on funding themselves satisfy the requirements of the First Amendment that they’re neutral and generally applicable.”

Maine will likely see several rounds of litigation to determine whether its Human Rights Act satisfies this requirement.