Supreme Court Upholds School Choice and Religious Freedom in Carson v. Makin

COMMENTARY: In a 6-3 decision, the court held that Maine violated the Constitution by preventing families from using state aid to send children to schools that provide what it calls ‘sectarian’ instruction.

Amy and David Carson and their daughter Olivia, who reside in Glenburn, Maine.
Amy and David Carson and their daughter Olivia, who reside in Glenburn, Maine. (photo: Courtesy photo / Institute for Justice)

On Tuesday morning the Supreme Court once again voted to defend religious freedom — this time by upholding the rights of parents to choose a Christian education for their children.  

In a 6-3 decision, the court held that the state of Maine violated the Constitution by preventing families in areas of the state that lack a public high school from using state aid to send children to schools that provide what it calls “sectarian” instruction. Chief Justice John Roberts, writing for the majority, explained that Maine’s “nonsectarian” requirement violates the Free Exercise Clause of the First Amendment.

Carson v. Makin is crucially important, not just for families in Maine but for the cause of genuine school choice across America. 

More than half of Maine’s school districts (143 out of 260) do not operate a public high school. For years the state has operated a program whereby these school districts pay tuition, up to a statutory limit, for students to attend a public or private school. Some students use the aid to attend public schools or schools in nearby counties. Others use the aid to attend private schools.

In 1981, following guidance from the state’s attorney general, the Maine Legislature passed a law that bars schools offering what the state calls a “sectarian” education from receiving program funds. According to Maine’s Department of Education, a school is “sectarian” if it “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” 

No-Aid provisions similar to Maine’s are found in 37 state constitutions. Modeled after a failed amendment to the Constitution promoted by Maine Congressman James Blaine, these state Blaine Amendments were enacted in the late 1800s — amid a wave of anti-Catholic bigotry — to prevent Catholic schools from receiving any public funds. While Maine’s rule of more recent vintage is technically not a Blaine Amendment, it too is a weapon used to discriminate against religion. And Catholic schools suffer the most. This past academic year, for example, 10 of the 15 schools excluded as “sectarian” were Catholic.  

The Carson and Nelson families are Mainers who qualified for the voucher program and wanted to send their children to Christian schools excluded under the sectarian rule. They courageously challenged the discriminatory law all the way to the Supreme Court. 

Today they won.

This is not the first time the Supreme Court has struck down blatantly discriminatory government benefit programs. In 2017, the court in Trinity Lutheran v. Comer ruled unconstitutional a Missouri playground resurfacing program that offered grants to qualifying nonprofits but excluded those owned or controlled by a church. “[T]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand,” explained Roberts for the majority. Similarly, just two years ago the court declared unconstitutional Montana’s exclusion of religious schools from a state-sponsored tuition-assistance program in Espinoza v. Montana Dept. of Revenue. Roberts, again writing for the Court, explained that “[a] State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Despite the Court’s guidance, Maine tried to distinguish its program. The state claimed that the public benefit it offered was a “free public education” and just as its public schools were secular, Maine could require participating schools to be secular. Pointing to the state statute setting up the program, the court quickly rejected this assertion. “The benefit is tuition at a public or private school selected by the parent, with no suggestion that the ‘private school’ must somehow provide a ‘public’ education.” The court added that “it is simply not the case that these schools, to be eligible for state funds, must offer an education that is equivalent — roughly or otherwise — to that available in the Maine public schools.” 

Maine also tried to distinguish its “nonsectarian” restriction from those declared unconstitutional by claiming that it excludes schools not because of the religious identity of the schools but based on the religious use of public funds. While the lower courts were swayed by the argument, this Supreme Court understands that this is a distinction without much of a difference. “[A]ny status-use distinction lacks a meaningful application not only in theory, but in practice as well. In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination,” explained the Court. 

The “liberal bloc” of this Supreme Court — Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor — sided with Maine. “We have 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,” wrote Breyer in his dissenting opinion. Justice Sonia Sotomayor offered a sinister suggestion:

“If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.” 

Opponents of school choice will try to shrug off Wednesday’s decision, arguing that it applies only to Maine’s tuition-assistance program. Or they may claim that the decision will force states to fund private religious education to the detriment of public schools. Neither assertion is true. Carson v. Makin instead reaffirms a simple principle grounded in our Constitution: The government must not discriminate based on religion. 

Parents across the country are increasingly interested in alternatives to government-run schools that force-feed their children progressive dogma. Lawmakers should wake up to this and advocate for school-choice initiatives so that taxpayer funds can travel with students to their family’s school of choice. Excluding Catholic and other religious schools from such initiatives, as the court made clear in its opinion, is a bigoted policy that has no place in a free society.

Rebecca Shah (l) and Ambassador Sam Brownback

Ambassador Sam Brownback and Rebecca Shah (Season 4 — Ep. 5)

Our guests on this episode of Religious Freedom Matters are Sam Brownback, a former U.S. senator and Kansas governor who served as the U.S. Ambassador at Large for International Religious Freedom from 2018 to 2021, and Rebecca Shah, principal investigator for the Religion and Economic Empowerment Project (REEP) and a senior fellow at the Archbridge Institute.