CARSON, AS PARENT AND NEXT FRIEND OF O. C., ET AL. v. MAKIN, No.  20-1088.  U.S. Supreme Court June 21, 2022.


Maine is the most rural state in the nation.  Some geographic “School Administrative Units” have no public secondary schools through which to provide the education promised by the state. To ameliorate the strain families who must make arrangements for their children, Maine offers tuition assistance to parents so that their children may access secondary education through qualified schools outside the geographic confines of the School Administrative Units.

At one time, Maine did not distinguish between sectarian and non-sectarian schools for purposes of funding parents’ preferences.  In 1981, Maine determined that this practice was in violation of the Establishment Clause of the First Amendment.

Parents who selected schools with religious orientation challenged Maine’s denial of tuition assistance as violative of the First Amendment Free Exercise Clause, triggering what appears to be an annual (or at least semi-annual) head on collision between the Establishment Clause, which precludes government endorsement of religion, and the Free Exercise Clause, which forbids government interference with religious practice.

While the petitioners’ litigation was pending, the Supreme Court struck down a Montana statute that forbade aid to any church controlled school as offensive to the Free Exercise Clause.   Espinoza v. Montana Department of Revenue, 591 U. S. ___ (2020).  While this removed from the consideration of the U.S. Court of Appeals for the First Circuit any reliance on prior precedent that would affirm Maine’s refusal to provide tuition assistance that would permit students to attend sectarian schools.

Nonetheless, the First Circuit distinguished away Espinoza because Maine, unlike Montana, concerned itself with religious use of funds as opposed to a blanket prohibition based on religious identify. Moreover, the First Circuit perceived another distinguishable difference between Montana and Maine, because Maine intends to provide the equivalent of a public school education not otherwise available in a student’s location.  As public school education is secular, no constitutional harm is done by limiting tuition assistance to parents whose children will attend secular schools.

The Supreme Court’s majority has concluded that the Maine tuition assistance scheme fails to comport with the Free Exercise Clause because it conditions the availability of an otherwise available public benefit based on a requirement of ‘non-sectarianism’ within accredited schools.

That the Free Exercise Clause prohibits indirect burdens on religious exercise has recently been re-emphasized by the Court, not only with respect to participation in public contracts, as in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017), but also with respect to providing funding assistance to private education, as in Espinoza, supra.  In neither case can religion be interposed as a disqualifier precluding access to benefits otherwise available to all. 

The Court noted that a state need not fund private education.  If a state chooses to do so, however, the state may not preclude participation because of religious affiliation. 

In dissent, Justice Breyer expressed fear that the majority view — which requires other citizens to subsidize, through taxation — aid to religious views they might find objectionable — threatens to foment the kind of discord that the tension between the Establishment and Free Exercise Clauses were intended to inhibit.  This is all the more so in this case, where not just religious affiliation but religious instruction within the curriculum is in issue. 

In Justice Breyer’s view, the Religion Clauses serve the nation well by precluding state involvement in religion and by prohibiting state restraint of religion.

Justice Breyer sees the majority’s decision as introducing religion into public education, the provision of which is contemplated by Maine’s statutory scheme.  

Notwithstanding the not infrequent tension between the religion clauses, their overall purpose is to function as complements in creating a government that is benevolently neutral. The Court has previously expressed that the Religion Clauses ”permit religious exercise..without sponsorship or interference,” as this would “insure that no religion be sponsored or favored, none commanded, and none inhibited.” Walz v. Tax Comm’n of the City of New York, 397 U.S. 664, 669 (1970).  

Separately dissenting, Justice Sotomayor has expressed dismay that the Court has chartered a dangerous course, essentially eviscerating the Establishment Clause in service of the Free Exercise Clause.  Justice Sotomayor observes that, rather than stressing that the government need not fund religious activity, the Court has embraced the idea that the states may now be compelled “to subsidize religious indoctrination with taxpayer dollars.”  Sotomayor, J., Dissent, Slip. Op. at 3.

Carson v. Makin, 596 U.S. ____ (2022)

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