WASHINGTON — The Supreme Court on Wednesday appeared likely to rule that state programs providing money to parents for their children's high school tuition cannot exclude schools offering religious education.
Such a ruling would loosen longstanding restrictions on using taxpayer money to pay for religious instruction, further lowering the wall of separation between church and state.
The justices heard 90 minutes of courtroom argument Wednesday involving a program in Maine that makes tuition money available to families living in areas without a public high school, which they can use pay for attendance at public or private schools in other communities.
But the money cannot be used to send children to sectarian schools, defined by the state as those that promote a particular faith or belief system and teach material "through the lens of this faith."
Several of the court's conservatives suggested they believed the state law is unconstitutional.
"The problem is that our case law suggests that discriminating against all religions, as compared to secular or comparable secular, is just as discriminatory as to exclude the Catholic and the Jewish and include the Protestant," said Justice Brett Kavanaugh.
"The parents are seeking equal treatment. They're saying, 'Don't discriminate against me because I'm religious,'" he said.
Maine originally did allow the money to be used for tuition at religious high schools but changed its policy after the state attorney general concluded that the program violated the Constitution's requirement of religious neutrality toward religion.
Justice Neil Gorsuch said that was "perhaps a mistaken view of the establishment clause" in the First Amendment.
The court's more liberal justices indicated their support for the current Maine program. Stephen Breyer said it's appropriate for governments to avoid having to referee religious disputes.
"We don't want to get into a situation where a state will pay for the teaching of religion," he said.
But Michael Bindas, the lawyer for families challenging the restriction, said the tuition money goes to families, not directly to schools.
"Not a penny can go to the schools without the choice of the individual families," Bindas said. "That severs the link with government funds."
The case came to the court after two sets of parents in Maine sued over its policy, claiming the program violates their religious freedom.
David and Amy Carson sent their daughter to Bangor Christian School and were therefore not able to receive the state tuition money.
"I like to view it as a continuation of the values and the way that we raised her at the house,"Mrs. Carson said in an NBC News interview. "The beliefs that the school has are aligned with what we have at the home."
Troy and Angela Nelson send their children to a nonsectarian school but want them to attend Temple Academy, which describes its purpose as "to know the Lord Jesus Christ and to make Him known through accredited academic excellence and programs presented through our thoroughly Christian Biblical world view."
In the Supreme Court, the Justice Department supported Maine's position, saying the state is not playing favorites among various religious entities. That was a switch from the view it took in the early stages of the case, during the Trump administration, when it said the state was engaged in religious discrimination.
The court is expected to make its decision by the end of June.