Explainer: What is Carson v. Makin about?

Today, the U.S. Supreme Court will hear oral arguments in Carson v. Makin, a key religious liberty case before the court this term. Here’s what you need to know about this case:

What is the case about?

This case arises out of the unique way that Maine provides free education to its 180,000 students. Every child in the United States is entitled to a free public education. In Maine, there are rural areas where students don’t have easy access to a public school. Given that limitation, some of the school districts allow parents to choose a private school in the area to teach their children.

In order for a school to be able to participate in this program — and receive government funding — the private school must meet the state’s minimum requirements, and it must be “nonsectarian.” Functionally, this excludes a private religious school from participating in Maine’s public education program, because any school that provides religious instruction is considered “sectarian.”

In this case, three families sent their children to private schools that are accredited but do not meet the nonsectarian requirement because they are religiously affiliated. The schools aren’t approved by the State of Maine, and the families did not qualify for tuition assistance. They filed a lawsuit stating that Maine’s nonsectarian requirement violates the Constitution.

This case is a follow-up from Trinity Lutheran Church of Columbia v. Comer and Espinoza v. Montana Department of Revenue, which both dealt with the question of whether states can exclude organizations and schools from receiving public benefits simply because they are religious. Each case was decided favorably for religious liberty.

Why is this case important?

In Espinoza v. Montana Department of Revenue, the Supreme Court held, “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” 140 S. Ct. 2246, 2261 (2020).

The Carson case is important because it would close a loophole the First Circuit opened when upholding Maine’s exclusion of “sectarian” schools from its public education system. As the brief ERLC joined on petition for certiorari explains:

Nor can a state justify discrimination against religious schools with the ploy that the First Circuit permitted here: labeling its benefit as a “substitute” for, or “rough equivalent” of, a free “secular public education,” and then arguing that such an education must be secular, so religious schools can be excluded. That result and rationale conflict with this Court’s ruling in Espinoza and would allow easy evasion of Espinoza in the context of many government benefits. This Court must reject that rationale before other states attempt to capitalize on it.

Maine had argued that it was not excluding religious schools from participating in a public education program because the public benefit offered was for a secular education. It is easy to see how states would be able to continue excluding religious organizations from public benefits simply by redefining the nature of the benefit offered.

How has the ERLC been involved?

The ERLC was involved with briefs at the petition for certiorari stage and when the case was before the Supreme Court on the merits.

The brief the ERLC joined on the merits argues 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. The brief goes on to argue that the Supreme Court should adopt a per se rule against religious discrimination. In other words, where a state discriminates against religion, courts should immediately strike down the law rather than applying any kind of balancing test with state interests.

What’s next for this case?

The Supreme Court will hear oral arguments in this case on Dec. 8, 2021. The court will release its opinion later this term, likely in May or June of 2022. ERLC will continue to cover future developments on this case at ERLC.com.

The ERLC will always protect religious liberty before Congress, the courts, and in the public square.

For Further Reading: