Establishment Clause Can No Longer be Used to Justify Religious Discrimination
The U.S. Supreme Court has delivered a monumental victory to advocates of school choice and religious liberty in Maine and across the country.
In a 6-3 decision in Carson v. Makin, a Maine-based case challenging the sectarian exclusion within Maine’s town tuitioning program, the nation’s high court ruled that the law preventing state aid from flowing to religious schools under the tuitioning program violates the free exercise clause of the First Amendment and is unconstitutional.
Maine’s town tuitioning program is available to students who live in areas that do not operate their own public schools or contract with another district to educate their resident students. The local town sends tuition payments for the child’s education to the receiving school, whether it be a public or private institution. However, Maine families had been unable to receive public assistance to send their child to a religious school under the program since 1981.
Writing for the majority, Chief Justice John Roberts made clear that the program specifically excluded religious schools from participation in violation of Mainers’ right to the free exercise of religion.
“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” Roberts wrote. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”
Maine’s town tuitioning program, established in 1873, is the second-oldest school choice program in the country. For more than 100 years, Maine families could use the program to send their children to a private religious institution. It wasn’t until the state legislature codified an opinion of then-Maine Attorney General Richard Cohen in the early 1980s that parents could no longer use the program and receive assistance to send their child to a private religious school.
The decision should come as no surprise to those who’ve followed the high court’s actions in this area of law. In 2017, SCOTUS ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer that the state of Missouri couldn’t explicitly exclude religious organizations from a program that helped nonprofits pay for playground resurfacing. In 2020, the high court ruled in Espinoza v. Montana Department of Revenue that Montana couldn’t exclude religious schools from receiving tax credit-funded scholarships under its school choice program.
In Trinity Lutheran, the court stated that “The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.” In the Espinoza, the court ruled 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.”
All the high court did in Carson was apply the same standard. In fact, the justices wrote as much in their opinion.
“The ‘unremarkable’ principles applied in Trinity Lutheran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, [Bangor Christian School] and Temple Academy are disqualified from this generally available benefit ‘solely because of their religious character.’”
Just as it would be unlawful for state law to explicitly require the funding of a religious school, a state cannot exclude these institutions wholesale from eligibility in a neutral government aid program. The court has held numerous times now that the choices made by individual recipients of government aid severs the link between the government and where the money goes.
This case should put to rest once and for all that a neutral benefit program which allows public funds to flow to religious organizations through the individual choice of private beneficiaries runs afoul of the establishment clause. This argument should no longer be used anywhere in the country to compel religious discrimination.
In practical application, Maine’s tuitioning program can now be used to send children to any private religious institution (provided they comply with other sections of Maine law), and no one single religion would benefit. Thus, the state isn’t establishing a religion–it is simply including religious entities that would otherwise qualify for a neutral benefit program if not for their explicit exclusion under state law. That is justice.
Jacob Posik is the director of communications at Maine Policy Institute, a free market think tank in Portland, ME that submitted an amicus brief in support of the petitioners in Carson v. Makin.
