Carson v. Makin

Many U.S. states offer tuition assistance for private schools in lieu of public schools for primary education, using school vouchers. But several states have established in their constitutions, by way of a Blaine Amendment or similar wording, that the state cannot fund religious schools.^[1] About half Maine's students live in rural areas, many of which lack public high schools.^[2] Since 1873, Maine has provided tuition assistance program for residents of those areas to send their children to nearby public or private schools, which until 1980 included religious schools. The tuition covers board and travel, amounting to about $11,000 as of 2021. The program funds around 11 nonsectarian private schools across the state, handling approximately 4,800 students, and additional nonsectarian schools in neighboring states.^[3] Maine changed the program in 1980 to prohibit the vouchers from being used at secular schools run by religious organizations on the basis that funding such schools violates the U.S. and state constitutions, specifically the Establishment Clause and separation of church and state.^[4]

During the Trump administration, school choice became a major issue under President Donald Trump and Secretary of Education Betsy DeVos.^[2] Trump urged Congress to pass legislation to support school choice and vouchers, including for religious schools,^[5] but failed to gain sufficient support due to conflicts in the Senate and the unlikely chance of its success in the Democrat-controlled House of Representatives.^[6]

Zelman v. Simmons-Harris (536 U.S. 695 (2002)) had established that an Ohio voucher program that allowed parents to use the vouchers for private religious schools did not violate the Establishment Clause.^[7] Before Carson, the Supreme Court ruled in two precedent cases. In the first, Trinity Lutheran Church of Columbia, Inc. v. Comer (582 U.S. ___ (2017)), the Court ruled that denying a religious school in Missouri the funds to rebuild a playground while providing funds to non-secular schools violated the Free Exercise Clause of the First Amendment, and that government programs cannot discriminate on the basis of religion in their operations.^[1] In the second, Espinoza v. Montana Department of Revenue (591 U.S. ___ (2020)), the Court held that if states do offer such assistance, they cannot prevent such tuition from being used for religious schools simply because the schools are religious.^[8]

In 2018, the Institute for Justice took representation of two Maine families to challenge the exclusion of sectarian schools from Maine's program.^[1][8] The filing argued that per Trinity Lutheran, "The government must remain neutral with regard to religion—neither favoring nor disfavoring it—and the participants must exercise a genuine choice between religious and nonreligious options."^[1] As the voucher program discriminated against religious schools, the program was not neutral and therefore unconstitutional.^[1] The Institute also backed a second case in Washington state over its work-study program that prevented participants from being employed by religious organizations,^[1] though this case was ultimately dismissed.

The families' case was first heard in the United States District Court for the District of Maine, which found for the state in 2019.^[9][10] The case was appealed to the First Circuit. While it was in preparation for hearing, the Supreme Court issued its ruling in Espinoza, and the families filed a new brief asking the First Circuit to factor Espinoza into its deliberations.^[10] The First Circuit upheld the district court's ruling, ruling that since Maine's program based its voucher allowance on whether schools teach and proselytize religion with the voucher funds, rather than whether schools are run by religious organizations, the program fell within the separation of church and state.^[8]

Certiorari was granted in the case on July 2, 2021. Oral arguments were held on December 8, 2021.^[3] The state argued that its program does provide school vouchers for private schools with "substantially the same education provided in the public schools", and do not choose to fund those that have a significant religious teaching component.^[3] The state also contended that the program was not a school choice program, but intended to aid students where there is otherwise no local high school in reasonably close distance for them to attend.^[3] The families' council argued that if Maine's program allows parents to decide on an alternative to a public school for their children, "it has to remain neutral as between religious and non-religious private schools".^[3] The Cato Institute, Hillsdale College, The Church of Jesus Christ of Latter-day Saints, and the Americans for Prosperity Foundation filed amicus briefs in support of the petitioner, and The Freedom From Religion Foundation, The American Civil Liberties Union, and the National School Boards Association filed amicus briefs in support of the respondent.^[11]

In a 6-3 decision, the Supreme Court ruled on ideological lines that Maine's nonsectarian requirement for tuition assistance violates the Free Exercise Clause of the First Amendment to the United States Constitution, struck down the Maine law, and reversed the First Circuit. Chief Justice John Roberts wrote the opinion of the Court, joined by five other Justices. Justice Stephen Breyer wrote a dissenting opinion joined fully by Justice Elena Kagan and partially by Justice Sonia Sotomayor. Sotomayor wrote a separate dissenting opinion.^[12]

In his majority opinion, Roberts wrote that the State violated the Free Exercise Clause of the United States Constitution by preventing religious observers from receiving public benefits. He cited various cases where the court struck down actions that did so, such as Espinoza and Trinity Lutheran. He wrote that the Maine legislature excluded "private religious schools from those eligible to receive such funds" and that such exclusion separates of church and state more than intended under the Establishment Clause of the United States Constitution. He wrote that, on the basis of Zelman, "a benefit program under which private citizens 'direct government aid to religious schools wholly as a result of their own genuine and independent private choice'^[13] does not offend the Establishment Clause." The court ruled that Maine purposely "identif[ies] and exclude[s] otherwise eligible schools on the basis of their religious exercise" and that that is "discrimination against religion".^[14][7]

Breyer wrote a dissenting opinion joined fully by Kagan and partially by Sotomayor. Sotomayor wrote a separate dissenting opinion.^[15] Breyer expressed concern that Carson v. Makin could require states to fund religious schools with taxpayer money, writing that the ruling paid "almost no attention" to the First Amendment's prohibitions on the state's establishment of religion while "giving almost exclusive attention" the Amendment's prohibitions on religious free exercise.^[16] He also wrote that the ruling broke with historical precedent, that Supreme Court had "never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education."^[17]

In her dissent, Sotomayor wrote that in five years, the Court had "shift[ed] from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars."^[15] She argued that Carson "continues to dismantle the wall of separation between church and state that the framers fought to build."^[18]

While only one other state, Vermont, had a voucher program similar to Maine's, analysts anticipated that the decision would spur religious groups to seek similar programs in conservative states.^[17] Supporters of the ruling, including several religious groups, said the ruling would enhance religious liberties and "school-choice."^[17]

Many critics believe that the ruling in this case is a "further erosion" of the separation of church and state.^[9]

Steve Vladeck of CNN wrote that this ruling would put state "government[s] in the awkward position of having to choose between directly funding religious activity or not providing funding at all".^[17]

• Text of Carson v. Makin, 596 U.S. 767 (2022) is available from: Google Scholar Justia Oyez (oral argument audio) Supreme Court (slip opinion)