PBS News Hour

JUDY WOODRUFF

The U.S. Supreme Court handed another victory today to religious rights advocates. As John Yang reports, it had to do with an unusual education funding program in a small New England state.

JOHN YANG

Judy, the case involves Olivia Carson of Glenburn, Maine, a town so small that, like half the state school districts, it doesn't have a high school. Under Maine law, those students may get taxpayer money to help pay tuition at private schools, as long as they're nonsectarian. Because of that restriction, the state would not pay for Olivia to go to Bangor Christian School, which her parents had chosen for. Today, a 6-3 majority of the court said that violates the First Amendment's guarantee of free exercise of religion. Marcia Coyle is the chief Washington correspondent for "The National Law Journal." Marcia, this 6-3 division fell along the usual liberal-conservative lines, the six conservative justices in the majority, three liberal justices dissenting. Chief John Roberts wrote for the majority.

He said in part of his opinion

"A state need not subsidize private education, we concluded." He was referring to a previous case. "But once a state decides to do so, it cannot disqualify some private schools solely because they are religious." And then he turns to the main case. "The state pays tuition for certain students at private schools, so long as the schools are not religious. That is discrimination against religion." Marcia, can you unpack the majority's reasoning here? MARCIA COYLE, "The National Law Journal": Well, John, this case is sort of a step beyond two recent cases involving the Free Exercise Clause and the Supreme Court. In the most recent case involving schools, it was a scholarship program that religious parents and schools were excluded from. And the court there reiterated that you can't discriminate -- if a state is subsidizing private schools, you can't discriminate solely on the basis of religious status. The court left open, well, what about if the money is used for religious purposes by a school, not just because it's a religious school? And, there, the courts seemed today to say there really is no distinction. If a state is subsidizing private schools, it has to also subsidize religious - - private religious schools. And this is based on -- his reasoning was based on the Free Exercise Clause. Just as a reminder, John, remember, the First Amendment says two things about religion. It says Congress shall make no law respecting the establishment of a religion or prohibiting the free exercise of religion. And those two clauses, as the court has often said, are sometimes in tension with each other. And that was the case in this Maine school case. You had parents who want to have their students attend religious schools saying, you're violating our free exercise rights. At the same time, you have Maine saying, but if we subsidize you and private religious schools, we may be violating the Establishment Clause.

JOHN YANG

And, in dissent -- Justice Breyer wrote the main dissent for the three liberal justices.

Justice Sotomayor also wrote a dissent for herself. She said

"Today, the court leads us to a place where separation of church and state becomes a constitutional violation. If a state cannot offer subsidies to its citizens without being required to fund religious exercise, any state that values its historic anti-establishment interests more than this court does, will have to curtail the support it offers to its citizens." Help us understand the dissenters' argument too.

MARCIA COYLE

I think she's saying now that, basically, the majority has elevated the Free Exercise Clause above the Establishment Clause of the First Amendment and, as she said at the opening of her dissent, sort of destroying that old doctrine known as the wall of separation between church and state. And Justice Breyer also was very concerned about this sort of elevation of the Free Exercise Clause over the Establishment Clause. He said the court has always said there's been play in the joints between the two that allows states to deal with specific problems without violating the Free Exercise Clause or the Establishment Clause. And he thought that Maine was doing exactly that in order to deal with the problem of a lack of public high schools in rural areas. So, this is the continuation, John, of a trend in the Supreme Court. This conservative majority truly does favor the Free Exercise Clause. So the court is really expanding, I think, the role of religion in public life. And I'm not quite sure how much farther it's going to go.

JOHN YANG

Marcia Coyle, chief Washington correspondent for "The National Law Journal," thank you very much.

MARCIA COYLE

Thank you, John.