American schools that openly discriminate against LGBTQ2S+ students could score a major victory at the U.S. Supreme Court following a critical hearing this week.
On Wednesday, the Supreme Court heard oral arguments in Carson v. Makin, which will determine whether the state of Maine will be forced to fund religious schools under its taxpayer-subsidized voucher program. Under the arrangement, parents who live in rural areas of the state that lack a nearby public school have the ability to apply for up to $11,000 in annual aid to send their children to a private school, as ABC News reports.
Fewer than 5,000 students in Maine are currently involved in the program.
David and Amy Carson, however, filed a lawsuit in 2018 alleging that Maine is discriminating against people of faith by requiring that eligible schools be “nonsectarian.” The Carsons were reportedly forced to pay out of pocket to send their daughter to Bangor Christian School, which advocates an explicitly discriminatory worldview.
Bangor Christian School requires students to affirm that marriage “joins one man and one woman in a single, covenantal union,” according to a 2019 handbook freely available on its website. The same text proclaims that sex acts outside of marriage, regardless of the genders of the partners, constitute “sinful perversions of and contradictory to God’s natural design and purpose for sexual activity.”
The 47-page document also espouses transphobic and misogynistic views. It defines the creation of life as taking place in the “mother’s womb” and states that “any deviation from the sexual identity that God created will not be accepted,” which appears to refer to the ability of trans people to conceive children or medically transition. Bangor Christian School also states that the wife’s role is to “submit herself to the Scriptural leadership of her husband as the church submits to the headship of Christ.”
“The result could be another blow to LGBTQ2S+ equality.”
A second faith-based school represented in the lawsuit, Temple Academy, requires that faculty sign a statement affirming that it is God’s belief that “homosexuals and other deviants” are “perverted,” according to court documents.
Both campuses refuse to hire LGBTQ2S+ teachers, and Bangor Christian School bars queer and trans students from matriculation, per Bangor Daily News.
But those policies did not appear to be a dealbreaker for the Supreme Court’s six-person conservative majority. Chief Justice John Roberts argued that prohibiting faith-based schools from participating in Maine’s voucher program amounted to unconstitutional bias. “We have said that that is the most basic violation of the First Amendment religion clauses, for the government to draw distinctions between religions based on their doctrine,” he said.
Justice Brett Kavanaugh agreed, claiming that all Bangor Christian School and Temple Academy are requesting is “equal treatment” under the law. “They’re saying don’t treat me worse because I want to send my children to a religious school rather than a secular school,” he said. “Treat me the same as the secular parent next door.”
Justices Samuel Alito and Neil Gorsuch, meanwhile, also signaled their disdain for Maine’s position. Playing devil’s advocate, Alito asked the state’s lawyer, Maine Deputy Attorney General Christopher Taub, whether schools that teach white supremacy or critical race theory would be eligible for a tuition voucher. Gorsuch suggested that religious families should not be forced to “choose between receiving a public benefit and your faith.”
The Supreme Court’s liberal minority took the opposing view, with Justice Elena Kagan stating that Maine “doesn’t have to subsidize the exercise of a right.”
“These schools are overtly discriminatory,” Kagan said. “They’re proudly discriminatory. Other people won’t understand why in the world their taxpayer dollars are going to discriminatory schools. For any of a number of reasons, a state can say, ‘We don’t want to play in this game.’”
A decision in the case is expected in the spring.
The result could be another blow to LGBTQ2S+ equality following a series of Supreme Court decisions laying the groundwork for the further expansion of religious rights. In June 2020, judges ruled in a 7-2 verdict that faith-based schools do not have to comply with federal nondiscrimination laws, such as those that protect queer and trans workers. And earlier this year, the court held in a 9-0 decision that Philadelphia’s policy of refusing contacts to foster care agencies that turn away same-sex couples is unconstitutional.
Although LGBTQ2S+ advocacy groups claimed the latter ruling was a narrow decision that sidestepped broader implications, Alito complained that the decision didn’t go far enough, in a written opinion joined by conservative Justices Gorsuch and Clarence Thomas. He strongly urged the court to go further in protecting “religious liberty” in subsequent cases.
“The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” Alito wrote. “Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I.”
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