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A big win for religious liberty

Erin Hawley | The Supreme Court sides with parents on school choice in a groundbreaking decision


The U.S. Supreme Court on Tuesday Getty Images/Photo by Anna Moneymaker

A big win for religious liberty
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On Tuesday, the U.S. Supreme Court held that the state of Maine cannot discriminate against parents who choose religious schools for their children. This decision is monumental in the battle for school choice as it rejects the argument that governments can discriminate against religious organizations in the provision of public benefits based on religious use. Instead, the court clarified that such discrimination is just as unconstitutional as discrimination based on religious character or status.

In Maine, 143 of 260 school districts do not have public high schools. Instead, the state offers a tuition assistance program to help families send their high school–age children to the public or private school of the parent’s choice. But, since 1981, families in Maine have been denied access to the tuition program if they choose to send their children to a religious school that teaches from a faith perspective.

The Maine program puts religious schools and the families that choose them in an unworkable situation. Parents must either forgo otherwise generally available benefits and pay tuition at a religious school out of pocket or send their children to a secular school that does not meet their educational goals for their child. For the religious schools in the state, to be eligible for the program, they must abandon their religious mission.

The Supreme Court held that the free exercise clause of the First Amendment to the U.S. Constitution forbids Maine from withholding publicly available benefits from otherwise qualified private religious schools. The court’s decision in Carson v. Makin came with a 6-3 majority opinion written by Chief Justice John Roberts. The court built its opinion on two prior rulings. In Trinity Lutheran Church of Columbia v. Comer in 2017, the court held that a private religious school could not be excluded from a generally available grant that provided funding for playground resurfacing materials. Similarly, in 2020, the court ruled in Espinoza v. Montana Department of Revenue that parents could not be denied access to a state tuition tax credit program simply because they chose to send their children to a religious school. For the government to discriminate against religious organizations because of their religious character was ruled “odious” to the Constitution.

The state of Maine nevertheless argued that Trinity Lutheran and Espinoza were different because the funding restrictions in those cases relied on “status-based religious discrimination,” while Maine’s provision “imposes a use-based restriction.” In Maine’s view, a school that was religious in name only would be eligible for the tuition program. On the other hand, a religious school that actually teaches according to a faith tradition would be ineligible.

The Supreme Court’s trio of religious exercise cases, Trinity Lutheran, Espinoza, and Carson, preclude government discrimination based upon either religious status or religious use.

As Alliance Defending Freedom explained in its friend-of-the-court brief, that argument makes no sense. Rather, the Constitution protects the “freedom to act” and the “freedom to believe.” The Supreme Court agreed, finding the Maine program unconstitutional because it penalized the free exercise of religion. The court found that the effect of Maine’s law was to disqualify certain schools because they were religious.

While the Supreme Court’s decision in Carson v. Makin built upon two prior cases, it is groundbreaking for three reasons. First, the court clearly rejected the idea that states could discriminate based on religious use. On the contrary, use- and status-based discrimination were equally “offensive” to the free exercise clause.

Second, six justices wrote of the mission of religious education in favorable terms. “Educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school,” the court explained. The court also indicated that religious schools must be given a wide berth in determining what religious education looks like. It counseled against entangling the state in questions regarding how religious schools pursued their educational mission. To ask those sorts of questions would raise serious constitutional concerns about state entanglement and denominational favoritism.

Third, the Supreme Court focused on the effect government discrimination had on religion. It did not matter how Maine described its tuition benefit program or its restriction on religious schools. The Supreme Court assessed how the program operated. In the future, governments will not be able to evade the Supreme Court’s ruling in Carson based on clever drafting.

The Supreme Court’s trio of religious exercise cases, Trinity Lutheran, Espinoza, and Carson, preclude government discrimination based upon either religious status or religious use. This is a huge win for school choice as parents all across the country will be free to use otherwise available education benefits for private religious schools that teach according to their faith tradition.

Editor’s note: Erin Hawley and Alliance Defending Freedom submitted an amicus brief in Carson v. Makin in support of the parent petitioners.


Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and former law professor.

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