Carson v. Makin: Virginia Does an About Face in SCOTUS Religious Liberty Case

The Commonwealth of Virginia is breaking away from eight other states that support the state of Maine’s exclusion of religious private schools from a tuition-assistance program.

Carson v. Makin, pending now before the U.S. Supreme Court, raises the question whether the First Amendment’s Free Exercise Clause requires Maine to allow, or disallow, religious private schools to participate in a private-school tuition program for children in rural areas.

Maine argued before the Court that tuition-assistance funds can go to religious schools if those schools do not provide “sectarian” or religious instruction. A statement from Virginia’s Solicitor General Andrew Ferguson highlights the absurdity of this argument:

“Maine’s proposed distinction between impermissible discrimination on the basis of religious status and permissible discrimination on the basis of the religious use of funds is illusory and finds no support in the text of the First Amendment.”

Ferguson then quotes a 2020 Supreme Court opinion in a landmark religious liberty case, Espinoza v. Montana Dep’t of Revenue:

“[W]hether [the exclusion] is better described as discriminating against religious status or use makes no difference: It is a violation of the right to free exercise either way …”

Protect The 1st urges the Justices take a moment to read this crisp, succinct memo from Virginia as they make their decision.