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Supreme Court of the United States • 2022

Carson v. Makin

596 U.S. 767 | 142 S. Ct. 1987 | 213 L. Ed. 2d 286

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Takeaway

In short, Carson holds that once a State offers generally available tuition aid for private schooling, it may not exclude schools because they provide religious instruction or teach through a religious viewpoint.

Background

Maine guarantees children an opportunity for a free public education. Because many rural school administrative units do not operate a secondary school or contract with one, Maine provides tuition assistance. Parents in those units may choose a public or approved private school, and the unit pays tuition up to a statutory cap. Approved private schools may differ substantially from public schools: they may be selective, charge tuition above the state payment, use nonpublic-school curricula, employ uncertified teachers, and operate as single-sex schools.

Since 1981, however, Maine has limited the program to "nonsectarian" schools. The Department of Education treated a school as sectarian when it was associated with a faith and promoted that faith or taught academic material through a religious lens. Bangor Christian Schools and Temple Academy met Maine's general approval requirements but were excluded because they provided religiously integrated education. The Carson and Nelson families would have used the assistance to send their children to those schools.

The families sued Maine's education commissioner, alleging violations of the Free Exercise and Establishment Clauses and the Equal Protection Clause. The District Court granted judgment to the commissioner under then-controlling First Circuit precedent. After Espinoza v. Montana Department of Revenue undermined that precedent, the First Circuit nevertheless affirmed, reasoning that Maine was funding the equivalent of a secular public education and had imposed a permissible restriction on religious use rather than religious status. The Supreme Court reversed and remanded.

Issues

Issue #1

Whether Maine may exclude otherwise eligible religious schools from its generally available tuition-assistance program under a "nonsectarian" requirement.

Holding

No. The exclusion violates the Free Exercise Clause because it denies an otherwise available public benefit on the basis of religious exercise, and Maine did not satisfy strict scrutiny.

Reasoning

The Court treated Maine's program as a generally available public benefit. Maine gave eligible families tuition assistance that could be directed to a broad range of public or private schools selected by parents. Bangor Christian and Temple Academy were excluded even though they otherwise qualified, solely because they offered education through a religious perspective.

Trinity Lutheran and Espinoza controlled the central principle. A State need not subsidize private education at all, but once it chooses to provide a benefit for private schooling, it cannot disqualify schools merely because they are religious. Conditioning a benefit on giving up religious character or exercise imposes an unconstitutional penalty on free exercise.

Because Maine's rule targeted religious schools for distinctive treatment, it triggered strict scrutiny. The State's interest in separating church and state more completely than the federal Establishment Clause requires was not compelling. Under Zelman, a neutral aid program in which money reaches religious schools through parents' genuine and independent choices does not itself violate the Establishment Clause.

Issue #2

Whether Maine could characterize the tuition program as providing only the equivalent of a secular public-school education and therefore exclude religious instruction.

Holding

No. Maine could not avoid Free Exercise scrutiny by redefining the benefit as a secular public education.

Reasoning

The statute offered tuition at either a public school or an approved private school chosen by the parent; it did not say that participating private schools had to provide a public-school education. The Court emphasized that Maine's participating private schools differed from public schools in important ways, including admissions practices, curriculum, teacher-certification requirements, and in some instances tuition charges exceeding the state benefit.

Maine's asserted equivalence therefore rested principally on one feature: participating schools had to be secular. But defining the benefit as secular private education simply restated the challenged exclusion. States cannot manipulate the description of a program so that the condition being challenged becomes part of the benefit's definition; otherwise, Free Exercise protection would become a semantic exercise.

Maine remained free to provide education through public schools or other nonprivate-school alternatives. But having chosen to give certain parents tuition assistance usable at a parent-selected private school, Maine had to administer that benefit consistently with the Free Exercise Clause.

Issue #3

Whether Maine's exclusion was permissible because it regulated religious uses of tuition funds rather than a school's religious status, and whether Locke v. Davey supported the exclusion.

Holding

No. The Free Exercise Clause does not permit use-based discrimination against religious education in this program, and Locke's narrow exception for ministerial training does not apply.

Reasoning

The Court rejected the First Circuit's distinction between discrimination based on religious status and discrimination based on religious use. Trinity Lutheran and Espinoza held that status-based exclusions are unconstitutional, but neither case suggested that use-based exclusions receive lesser protection. In the context of religious schools, teaching the faith and integrating it into education are central religious exercises, so excluding schools for doing those things burdens free exercise.

The status-use line would also invite intrusive government inquiries into how religious schools pursue their missions and could create denominational favoritism. Maine itself conducted little such inquiry, relying largely on schools to identify themselves as sectarian, which further showed that the distinction lacked a workable practical basis.

Locke v. Davey did not authorize Maine's rule. Locke upheld a narrow exclusion of scholarship funding for a degree intended to train ministers, based on a historically rooted and substantial state interest in not funding clergy. The Court had already explained in Espinoza that there is no comparable historical tradition against aiding private religious schools, so Locke could not justify a broad exclusion of religious schooling.

Dissents

Justice Breyer

Reasoning

Justice Breyer argued that the Court gave insufficient weight to the Establishment Clause and to the traditional "play in the joints" between the Religion Clauses. In his view, the clauses permit a State, in some circumstances, to decline to fund religious activity even where the Establishment Clause would not itself forbid funding. That flexibility helps government maintain neutrality toward religion and avoid religious conflict.

He distinguished Trinity Lutheran and Espinoza as cases of status-based exclusion. Maine did not deny funds merely because a school was affiliated with religion; it denied funding to schools that would use state money to provide religiously integrated instruction. In his view, this use-based restriction resembled Locke v. Davey, which allowed Washington to withhold scholarship funds for ministerial training.

Breyer also viewed Maine's program as a practical means of supplying the free public education promised by state law to students in remote areas. Public education must remain religiously neutral, and Maine could reasonably conclude that schools teaching all subjects through a particular faith did not provide the civic, secular equivalent of a public education.

Finally, he warned that compelled funding of religious education could create religious and social division. Taxpayers may object to financing beliefs they reject, minority faiths may lack enough adherents to create funded schools, and state funding could prompt disputes over religious schools' curricula, admissions, and hiring practices. Maine's nonsectarian rule, he concluded, permissibly avoided those conflicts.

Justice Sotomayor

Reasoning

Justice Sotomayor joined all but one section of Justice Breyer's dissent and argued that the Court had rapidly dismantled the constitutional separation of church and state. In her view, prior doctrine allowed States to decline to fund religious institutions and recognized room between what the Establishment Clause permits and what the Free Exercise Clause requires.

She agreed that this case involved religious use, not merely religious status. Maine excluded schools because they would use public tuition payments to deliver religious instruction, which distinguished the case from Trinity Lutheran and Espinoza under the limits those decisions had previously recognized. The majority, she contended, erased that distinction and transformed a permissible choice to fund religion into a constitutional command to do so.

Sotomayor stressed the practical consequence: Maine must now subsidize religious instruction and institutions whose admissions and employment policies may discriminate on grounds including sexual orientation, gender identity, or religion. She also regarded the result as especially troubling because the program implements Maine's constitutional obligation to provide public education, which must be secular and religiously neutral.