The Issues Before SCOTUS in Carson v. Makin

Creator: Jonathan Kirn | Copyright: Jonathan Kirn

Rest assured, the state of Maine holds that it is perfectly okay for you to be a Catholic, provided you don’t teach children to believe in Catholic doctrine. Same with being a Protestant, a Jew, or a Muslim.
 
A strange split exists in the law concerning the difference between having the status or label of being an adherent to a religion and being so bold as to teach the tenets of that religion. A pair of Catholic and Protestant parents in Maine, David and Amy Carson and Troy and Angela Nelson, are petitioning the Supreme Court to resolve a split in the law and the philosophical mess that is Maine’s treatment of religious schools.
 
In 2020, it seemed as if recurring state discrimination against religious schools was finally going to be recognized as the constitutional violation it is. In Espinoza v. Montana Department of Revenue, the Supreme Court held that a state may not exclude families and schools from participating in a student-aid program because of a school’s religious status. Maine, in administering its tuition assistance program, agreed that it could not deny tuition benefits to students on the basis of their school’s status, but they could – and did – deny these benefits from schools that provide religious instruction.
 
Got that? Maine does not discriminate on the basis of religious labels but does discriminate on the basis of what those labels mean in practice.
 
The First Circuit Court of Appeals upheld the Maine law, agreeing that it is permissible to withhold tuition assistance from a school that, “in addition to teaching academic subjects, promotes the faith or belief system with which it is associated …” Christian schools could, presumably, qualify for the tuition assistance program provided they jettison any mention of Christ, the Bible, and any moment of the day dedicated to prayer.
 
It is easy to see why the Supreme Court has granted the petition and will hear this case. The Sixth and Tenth Circuits have held such exclusions to be unconstitutional, while the Vermont Supreme Court has upheld them. This split, which preceded Espinoza, survives it since Espinoza revolved around religious “status.”
 
“Only the Supreme Court can resolve this split, whether there is a constitutionally significant difference between discrimination based on ‘religious status’ and discrimination based on ‘religious use,’” said Gene Schaerr, general counsel of Protect The 1st. “The attempt to distinguish between religious status and religious practice is absurd and betrays official contempt toward faith. For the Supreme Court, the conclusion here should be, in baseball terms, a slow ball down the middle of the plate.”