The U.S. Supreme Court, in a 6-3 decision today, upheld the right of parents who wish to send their children to religious schools to enjoy the same access to state-sponsored tuition assistance programs as parents sending their children to secular schools.
The majority opinion in Carson v. Makin followed the reasoning that appeared in an amicus brief filed by the Protect The First Foundation – that the First Amendment’s Free-Exercise Clause requires governments to respect the liberty of parents to make the best choice to educate their children consistent with their faith.
The case arose from the refusal by the State of Maine to allow parents who qualify for tuition assistance programs to use their funds to send their children to religious schools that dare to impart religious teachings and have religious activities. Maine insisted on this standard even though these schools met all state education certification standards.
Maine defended its position by claiming it did not discriminate against religious schools, only schools with “sectarian” religious teachings and practices. The Court saw through Maine’s illogical standard – that a school could be Catholic in name but could not hold a Bible class or administer communion.
The majority also agreed that Maine’s subsidy for attendance at religious schools would not violate the Establishment of Religion Clause. Rather, the offense to the Constitution was a state regulator in Augusta, Maine, reviewing schools’ curriculum and deciding if a school is sufficiently irreligious or too religious. Writing for the majority, Chief Justice John Roberts concluded: “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment.”
The majority opinion referred to two precedents in which similar principles were applied. In Trinity Lutheran Church of Columbia, Inc., v. Comer (2017), the Court struck down a Missouri program that excluded religious organizations from a grant for nonprofits that installed cushioning playground surfaces made from recycled rubber tires.
More akin to Makin is Espinoza v. Montana Dep’t of Revenue (2020) concerning a state program that provided tax credits to donors who sponsored scholarships for private school tuition.
In today’s opinion, the majority declared that the “unremarkable” principles of Trinity Lutheran and Espinoza mean that 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.”
With a solid win for religious liberty in Carson v. Makin, we can expect future cases will explore the freedom of publicly funded religious charter schools to include religious instruction.
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