In an affirmation of religious freedom, the Supreme Court ruled 6-3 in Carson v. Makin on June 21 that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.

Chief Justice Roberts wrote the majority opinion joined by Justices Thomas, Alito, Gorsuch, and Barrett. Justice Breyer authored the dissenting opinion joined by Justice Kagan and Justice Sotomayor except for Part I-B. Justice Sotomayor also wrote a dissenting opinion.

This decision builds upon encouraging precedents set in previously decided cases concerning religious liberty. In Trinity Lutheran v. Comer and Espinoza v. Montana, states sought to bar religious institutions from using public funds even though those public benefits were not otherwise restricted. The Court ruled in favor of religious liberty in both cases and has now barred similar discriminatory maneuvering by Maine education officials. The Court ruled that parents who choose to participate in a tuition assistance program cannot have their constitutional right to free exercise abridged merely on the basis of sending their children to a religious school. This decision upholds religious liberty by reaffirming the precedent that states cannot exclude organizations and schools from receiving public benefits simply because they are religious. 

In the amicus brief the ERLC joined, we argued that Maine’s public education system, especially in light of how Maine defended its system in the courts, does not merely exclude religious schools — it discriminates against them.  

Below are key quotes from the majority opinion, concurrence, and dissent, highlighting how the court reached its decision. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.

For more details on the religious liberty issues present in this case, see our explainer here. To keep up to date on all Supreme Court cases we are watching in 2022, visit ERLC.com/SCOTUS.

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From the Syllabus 

“Petitioners sought tuition assistance to send their children to Bangor Christian Schools (BCS) and Temple Academy. Although both BCS and Temple Academy are accredited by NEASC, the schools do not qualify as “nonsectarian” and are thus ineligible to receive tuition payments under Maine’s tuition assistance program. Petitioners sued the commissioner of the Maine Department of Education, alleging that the “nonsectarian” requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment.” (1)

“The Free Exercise Clause of the First Amendment protects against ‘indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.’ The Court recently applied this principle in the context of two state efforts to withhold otherwise available public benefits from religious organizations.” (1-2)

“‘A State need not subsidize private education,’ the Court concluded, ‘but once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’” (2)

“The principles applied in Trinity Lutheran and Espinoza suffice to resolve this case.” (2) 

“Both that program and this one disqualify certain private schools from public funding ‘solely because they are religious.’ A law that operates in that matter must be subjected to ‘the strictest scrutiny.’” (2)

“Maine’s program cannot survive strict scrutiny. A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” (2)

“The First Circuit’s attempts to recharacterize the nature of Maine’s tuition assistance program do not suffice to distinguish this case from Trinity Lutheran or Espinoza.” (3)

“The First Circuit held that the ‘nonsectarian’ requirement was constitutional because the benefit was properly viewed not as tuition payments to be used at approved private schools but instead as funding for the ‘rough equivalent of the public school education that Maine may permissibly require to be secular.’ But the statute does not say anything like that. The benefit provided by statute 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.” (3)  

“Maine has chosen to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any public benefit program-including the prohibition on denying the benefit based on a recipient’s religious exercise.” (3) 

“The Court of Appeals also attempted to distinguish this case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were ‘solely status-based religious discrimination,’ while the challenged provision here ‘imposes a use-based restriction.’ Trinity Lutheran and Espinoza held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.” (3-4) 

Majority Opinion: Chief Justice John Roberts

“Prior to 1981, parents could also direct the tuition assistance payments to religious schools. Indeed, in the 1979– 1980 school year, over 200 Maine students opted to attend such schools through the tuition assistance program. In 1981, however, Maine imposed a new requirement that any school receiving tuition assistance payments must be ‘a nonsectarian school in accordance with the First Amendment of the United States Constitution.’” (3)

“BCS and Temple Academy are both accredited by the New England Association of Schools and Colleges (NEASC), and the Department considers each school a ‘private school approved for attendance purposes’ under the State’s compulsory attendance requirement.” (5)

“In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” (7)

“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” (10)

“Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires.” (10)

“Justice Breyer stresses the importance of “government neutrality” when it comes to religious matters, post, at 13, but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion. A State’s anti-establishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.” (10-11)

“…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. But the key manner in which the two educational experiences are required to be ‘equivalent’ is that they must both be secular. Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools. But ‘the definition of a particular program can always be manipulated to subsume the challenged condition,’ and to allow States to ‘recast a condition on funding’ in this manner would be to see “the First Amendment…reduced to a simple semantic exercise.” (13)

“The dissents are wrong to say that under our decision today Maine ‘must’ fund religious education. Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not ‘forced upon’ it.” (14)

“Montana argued that its case was different from Trinity Lutheran’s because it involved not playground resurfacing, but general funds that ‘could be used for religious ends by some recipients, particularly schools that believe faith should ‘permeate’ everything they do’…We explained, however, that the strict scrutiny triggered by status-based discrimination could not be avoided by arguing that ‘one of its goals or effects [was] preventing religious organizations from putting aid to religious uses’…And we noted that nothing in our analysis was ‘meant to suggest that we agree[d] with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.’” (15)

“In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.” (16)

“Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.” (18)

Dissenting Opinion: Justice Breyer

“The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second. The majority also fails to recognize the ‘play in the joints’ between the two Clauses.” (1)

“This means that a State cannot use ‘its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals…Nor may a State ‘adopt programs or practices in its public schools . . . which ‘aid or oppose’ any religion…This prohibition,’ we have cautioned, ‘is absolute.’” (2)

“In a word, to interpret the two Clauses as if they were joined at the hip will work against their basic purpose: to allow for an American society with practitioners of over 100 different religions, and those who do not practice religion at all, to live together without serious risk of religion-based social divisions.” (6)

“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. What happens once ‘may’ becomes ‘must’?” (7)

“State funding of religious activity risks the very social conflict based upon religion that the Religion Clauses were designed to prevent. And, unlike the circumstances present in Trinity Lutheran and Espinoza, it is religious activity, not religious labels, that lies at the heart of this case.” (9)

“Maine does not refuse to pay tuition at private schools because of religious status or affiliation. The State only denies funding to schools that will use the money to promote religious beliefs through a religiously integrated education – an education that, in Maine’s view, is not a replacement for a civic-focused public education.” (14)

“…Maine’s decision not to fund such schools falls squarely within the play in the joints between those two Clauses. Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children teh religiously neutral education required in public school systems. And that, in significant part, reflects the State’s anti-establishment interests in avoiding spending public money to support what is essentially religious activity. The Religion Clauses give Maine the ability, and flexibility, to make this choice.” (15)

“In my view, Maine’s nonsectarian requirement is also constitutional because it supports, rather than undermines, the Religion Clauses’ goal of avoiding religious strife. Forcing Maine to fund schools that provide the sort of religiously integrated education offered by Bangor Christian and Temple Academy creates a similar potential for religious strife as that raised by promoting religion in public school.” (15)

“Maine wishes to provide children within the State with a secular, public education. This wish embodies, in significant part, the constitutional need to avoid spending public money to support what is essentially the teaching and practice of religion.” (18)

Dissenting Opinion: Justice Sotomayor

“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” (1)

“…The Court now holds for the first time that ‘any status-use distinction’ is immaterial in both ‘theory’ and ‘practice.’ … It reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording government flexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shifting 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.” (3)

“Nonetheless, it is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today’s result.” (5)

“What a difference five years makes. In 2017, I feared that the Court was ‘lead[ing] us … to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.’ … Today the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic anti-establishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.” (5)