# Carson v. Makin

Carson v. Makin, 596 U.S. 767 (2022), was a landmark United States Supreme Court case related to the Free Exercise Clause of the First Amendment to the United States Constitution. It was a follow-up to Espinoza v. Montana Department of Revenue.
The case centered on the limits of school vouchers offered by the state of Maine, which disallowed the use of vouchers to pay for tuition at religious-based private schools. In a 6–3 decision, the Court ruled that Maine's restrictions on vouchers violated the Free Exercise Clause, as they discriminated against religious schools and the parents who chose them for their children. The dissenting opinions argued that the decision worked against the long-standing principle of the separation of church and state, since state governments would now be required to fund religious institutions.

## Background

Many U.S. states offer tuition assistance for private schools in lieu of public schools for primary education, using school vouchers. Several states have established in their constitutions, by way of a Blaine Amendment or similar wording, that the state cannot fund religious schools, but Maine is not among those states. About half Maine's students live in rural areas, many of which lack public high schools. Since 1873, Maine has provided tuition assistance for residents of those areas to send their children to nearby public or private schools of their choice. The tuition assistance amounted to a maximum of about $11,000 as of 2021. Under the program, children can attend private schools inside or outside Maine—even outside the country.
Beginning in 1980, pursuant to a state attorney general opinion, those schools had to be nonreligious. In 1982, the state legislature changed the law to prohibit the vouchers from being used at sectarian schools, believing that funding such schools would violate the U.S. Constitution's Establishment Clause. But in 2002, the Supreme Court held in Zelman v. Simmons-Harris that a Ohio voucher program allowing parents to use the vouchers to attend private religious schools did not violate the Establishment Clause. Nevertheless, Maine continued to exclude religious options from its tuition assistance program. Before Carson, the Supreme Court decided two cases that were particularly relevant precedents for Carson. In the first, Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court ruled that denying a Missouri religious school the funds to resurface a playground while providing such funds to non-religious schools violated the Free Exercise Clause of the First Amendment, and that government programs cannot discriminate on the basis of religious status. In the second, Espinoza v. Montana Department of Revenue, the Court relied on Trinity Lutheran and held that a state-based scholarship program that allows students to attend private schools cannot discriminate against religious schools.

## Lower courts

In 2018, the Institute for Justice took representation of two Maine families to challenge the exclusion of sectarian schools from Maine's program. The filing argued that per Trinity Lutheran, "The government must remain neutral with regard to religion—neither favoring nor disfavoring it—and the participants must exercise a genuine choice between religious and nonreligious options." As the voucher program discriminated against religious schools, the program was not neutral and therefore was unconstitutional. The Institute also backed a second case in Washington state over its work-study program that prevented participants from being employed by religious organizations, though this case was ultimately dismissed.
The families' case was first heard in the United States District Court for the District of Maine, which found for the state in 2019. The families appealed to the First Circuit. While the appeal was pending, the Supreme Court decided Espinoza, and the families filed a new brief asking the First Circuit to factor Espinoza into its deliberations. The First Circuit upheld the district court's ruling, ruling that since Maine's program based its voucher allowance on whether schools teach and proselytize religion with the voucher funds, rather than whether schools are run by religious organizations, the program fell within the separation of church and state.

## Supreme Court

The Supreme Court granted certiorari on July 2, 2021, and held oral arguments on December 8, 2021. The state argued that its program provides school vouchers for private schools with "substantially the same education provided in the public schools", and it could choose not to fund those that have a significant religious teaching component. The state also contended that the program was not a school choice program, but intended to aid students where there is otherwise no local high school in reasonably close distance for them to attend. The families' counsel argued that if Maine's program allows parents to decide on an alternative to a public school for their children, "it has to remain neutral as between religious and non-religious private schools". The Cato Institute, Hillsdale College, The Church of Jesus Christ of Latter-day Saints, and the Americans for Prosperity Foundation filed amicus briefs in support of the families, and The Freedom From Religion Foundation, The American Civil Liberties Union, and the National School Boards Association filed amicus briefs in support of the state.

### Ruling

In a 6–3 decision, the Supreme Court ruled on ideological lines that Maine's nonsectarian requirement for tuition assistance violates the Free Exercise Clause of the First Amendment to the United States Constitution, struck down the Maine law, and reversed the First Circuit. Chief Justice John Roberts wrote the opinion of the Court, joined by five other Justices. Justice Stephen Breyer wrote a dissenting opinion joined fully by Justice Elena Kagan and partially by Justice Sonia Sotomayor. Sotomayor wrote a separate dissenting opinion.

### Opinion of the Court

In his majority opinion, Roberts wrote that the State violated the First Amendment's Free Exercise Clause by preventing religious observers from receiving public benefits. He cited various cases where the court struck down actions that did so, such as Espinoza and Trinity Lutheran. He wrote that the Maine legislature excluded "private religious schools from those eligible to receive such funds" and that such exclusion separates church and state more than intended under the Establishment Clause of the United States Constitution. He wrote that, on the basis of Zelman, "a benefit program under which private citizens 'direct government aid to religious schools wholly as a result of their own genuine and independent private choice' does not offend the Establishment Clause." The Court ruled that Maine purposely "identif[ies] and exclude[s] otherwise eligible schools on the basis of their religious exercise" and that that is "discrimination against religion".

### Dissents

Breyer wrote a dissenting opinion joined fully by Kagan and partially by Sotomayor. Sotomayor wrote a separate dissenting opinion. Breyer expressed concern that Carson v. Makin could require states to fund religious schools with taxpayer money, writing that the ruling paid "almost no attention" to the First Amendment's prohibitions on the state's establishment of religion while "giving almost exclusive attention" the Amendment's prohibitions on religious free exercise. He also wrote that the ruling broke with historical precedent, that Supreme Court had "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."
In her dissent, Sotomayor wrote that in five years, the Court had "shift[ed] 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." She argued that Carson "continues to dismantle the wall of separation between church and state that the framers fought to build."

## Analysis

While only one other state, Vermont, had a voucher program similar to Maine's, analysts anticipated that the decision would spur religious groups to seek similar programs in conservative states. Supporters of the ruling, including several religious groups, said the ruling would enhance religious liberties and "school-choice."
Many critics believe that the ruling in this case is a "further erosion" of the separation of church and state.
Steve Vladeck of CNN wrote that this ruling would put state "government[s] in the awkward position of having to choose between directly funding religious activity or not providing funding at all".