The Supreme Court’s landmark Carson v. Makin decision is welcome news for parents and religious institutions. It ended decades of discrimination in Maine’s school choice program and signaled to other states that they could not bar people from receiving public benefits because of their religious exercise.
Many school districts in Maine are so small that instead of operating public schools, they give families a tuition benefit to use at a school of their choice — except for “sectarian” schools. Like other states, Maine was misguided by the myth of a “high wall of separation” between church and state, and it adopted measures that barred families from using their benefits at religious schools. The idea was that public dollars mustn’t eventually end up benefiting religious institutions, even if those dollars went to families who chose where to send them. This meant that families who wanted to send their children to religious schools had to either forgo free tuition or — if they couldn’t afford to pay out of pocket — choose another school.
The Supreme Court struck down Maine’s law and explained that states could not prevent people from using their benefits at religious institutions that teach the tenets of their faith. The Carson case, after 2017’s Trinity Lutheran Church v. Comer and 2020’s Espinoza v. Montana Department of Revenue, completes a precedential trilogy that definitively answers the question of how to treat religious organizations in public benefit programs: the same as any other private institution.
Carson is a big win for religious liberty and school choice advocates, and it reflects their decades of hard work. But religious schools and their families aren’t in the clear. School choice opponents have already sought to change the rules of school choice programs to exclude religious institutions.
For example, before the ink dried on the Carson opinion, Maine’s attorney general announced his intent to keep religious schools out of the state’s program anyway. He pledged to encourage lawmakers to “explore … amendments to address the court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.” Did you catch that? First, religious schools were out of the program because they were religious. Now, they’re out because Maine apparently believes they are intolerant bigots that discriminate.
We’ve already seen this well-worn playbook in use elsewhere in the country. For example, in Maryland, state officials kicked a Christian school I represented out of a scholarship program for low-income students because the school’s handbook mentioned its religious beliefs. Unsurprisingly, the school believes that marriage is a union between a man and a woman and that each person is created in God’s image and likeness as either male or female. According to Maryland, the mere existence of that language meant that the grade school discriminated against students. After the state demanded that the school repay more than $102,000 in previously awarded scholarship money, the school filed suit and ultimately won a judgment in its favor last December. The federal district court’s opinion made clear that Maryland had discriminated against my client purely because of its religious speech, which violated the First Amendment.
Similarly, a federal appellate court awarded my clients in Vermont injunctive relief that ended two decades of discrimination in that state’s school choice programs. State legislators reacted by attempting to amend Vermont’s laws to exclude religious schools otherwise. Because this victory occurred before Carson, some of the proposed changes tried to quash the “religious use” of benefits — something that decision now firmly prohibits. But lawmakers also sought to weaponize anti-discrimination laws, targeting religious schools. And the Vermont Senate passed provisions attempting to strip religious institutions of state statutory and constitutional religious liberty protections, including in the state’s employment laws. These amendments stalled in the Vermont House of Representatives only after the ACLU intervened, worried about the likely success of constitutional challenges by families and religious schools. How Vermont will proceed remains to be seen, but some lawmakers have suggested getting rid of school choice in that state altogether. Such a move would hurt underprivileged students most and shows just how radical opponents of religious education have become.
And even where government officials are favorable to school choice and religious institutions, opponents will still put up a fight. In North Carolina, activists filed suit against the state, arguing that its school choice program violates North Carolina law and is discriminatory because it allows families to choose Christian schools with Christian views and policies on marriage and human sexuality.
Expect to see such suits elsewhere.
After the COVID-19 lockdowns, more states adopted more school choice options than ever before. And Carson means that families will be able to use their benefits at religious institutions if they choose. But religious institutions should expect to face continued resistance and anti-religious discrimination, ironically in the name of preventing discrimination. Until the courts make it clear to states that they cannot force religious institutions to abandon their religious beliefs as a condition for participating in the public square, religious schools aren’t in the clear.
Paul Schmitt is a Washington, D.C. based constitutional attorney with Alliance Defending Freedom representing churches and religious schools.
