You won’t find the words “wall between church and state” in the Constitution.

Instead, the First Amendment gives individuals the right to practice their religion while it prohibits the government from creating an official church. The place where the free-exercise clause ends and the establishment clause begins is “the wall,” and its exact location has been hotly litigated in our courts for more than a century.

Late last month, the Supreme Court moved the line again, finding that a state of Montana scholarship program could not exclude students who wanted to use public funds to go to religious universities. The decision in Espinoza v. Montana Department of Revenue has given hope to a group of Maine parents: They want to send their children to religious schools and are appealing a 2019 federal ruling that denied them access to a state program that uses state and local education money to pay private-school tuition for families in towns without high schools.

In both cases, the families argued that they are penalized for choosing religious education, a violation of their free-exercise rights. Maine Attorney General Aaron Frey has said that there are enough differences between between the two states’ programs to make the Maine program survive the Supreme Court’s ruling in the Montana case.

But even if the new ruling applies, the families may still find themselves out of luck. That’s because the religious schools would have to apply to the state for the funds, and they may not think it’s worth it.

Religious organizations are exempt from Maine Human Rights Act protections against sexual orientation-based employment discrimination – as long as they don’t receive public funding. The schools could win the tuition case, and find themselves subject to lawsuits from people who were fired or denied a job just because they were lesbian or gay.

The schools could seek protection from the courts, asking to be allowed to keep their exemptions from employment law and the public tuition money, but that would provide a religious group with a privilege at the expense of a much larger number of taxpayers who belong to different religions or no religion at all. This kind of preference is what the establishment clause was written to prevent.

The wall between church and state has proven to benefit both church and state. Religious organizations can exist independent of government meddling as long as they don’t demand government funding. Individuals have the freedom to choose their faith without the government doing favors to some of the choices.

The Constitution requires us to strike a balance on religion, and the courts should not upset it now.


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