Will SCOTUS Stop Unjust Discrimination Against People Living Out Their Faith?


Scott Blakeman

Update: June 21, 2022 - The U.S. Supreme Court ruled in Carson v. Makin that the state of Maine cannot exclude students who attend religious schools from a government program in which they are otherwise qualified. Read the press release here.

On December 8th, the U.S. Supreme Court will hear oral arguments in an important case involving religious freedom and school choice. The Court decided to hear the case, Carson v. Makin, after a District Court and the First Circuit Court of Appeals both ruled against parents in Maine who want to apply funds from a state tuition program to tuition at religious schools.  


Maine is a beautiful state, but it’s no secret that it’s sparsely populated – and it’s even more sparsely populated with public schools. As a result, many students in the state don’t have easy access to educational opportunities. To help offset this burden on students and their families, Maine provides funds from a state tuition program to parents that they can use to pay for tuition at private schools in and around the state. It’s a great way to help solve a real dilemma while also offering students and parents the benefits associated with having more choices in educational opportunities.

But, unfortunately, there’s a catch, and this is why the case worked its way to the Supreme Court: Parents can only use their subsidies from the state on schools that are “non-sectarian,” i.e., non-religious.

What this means in practice is that the state of Maine is actively discriminating against students and parents solely because they want to exercise their religious beliefs by pursuing an education at a religious school.

Religious Status vs. Religious Use

While Maine’s actions seem to be a clear violation of free exercise rights found in the Constitution, a District Court, and the First Circuit Court of Appeals both disagreed. But what was their rationale? It hinges on a legal distinction between religious status and religious use. Both courts claimed that, while it’s unconstitutional for the government to discriminate against a school solely based on its religious nature (its religious status), it’s appropriate for the government to discriminate against a religious school (and by extension its students and their parents) when the school acts in accordance with its faith (its religious use). In other words, a school that is “religious in name only” passes constitutional muster, but an institution that actively lives out its faith does not. This is nonsensical and doesn’t match with the precedents set by some recent, important Supreme Court case rulings.

Clear Precedent from SCOTUS

One such case was Trinity Lutheran Church of Columbia v. Comer. Trinity Lutheran Church wanted to improve the safety of its playground for its students and the community at large, so it applied for a playground resurfacing grant from the state’s Department of Natural Resources.

However, the Department denied a grant to Trinity solely because the preschool was operated by a church, basing its decision on a state constitutional clause, a Blaine Amendment, that prohibited aid to churches. In 2017, the Supreme Court rightly ruled 7-2 in favor of the church-and-preschool affirming Trinity Lutheran’s religious freedom and that the government cannot exclude churches and other faith-based organizations from a secular government program simply because of their religious identity.

The Court built upon the important Trinity Lutheran precedent in 2020 with Espinoza v. Montana Department of Revenue. In this case, the Court upheld a Montana tuition tax credit program that provided financial aid to both non-religious and religious schools. Once again, that state’s Blaine Amendment had been the culprit relied upon to stifle religious freedom and educational choice. Thankfully, the Court affirmed that states cannot design benefit programs with hostility toward religion.

The Bottom Line

The government can’t discriminate against people of faith who wish to act consistent with that faith in all areas of their lives.  And states can’t oust parents and children from a generally available benefit program simply because they choose a religious private school.  

ADF filed a “friend-of-the-Court” brief in support of those challenging the unconstitutional discrimination against religious schools in the Maine Carson v. Makin case. The Supreme Court should recognize the strong precedents set in upholding religious freedom and free exercise rights and allow students and parents in Maine – and every other state in our country – to exercise their faith by pursuing religious education if they decide that’s what is best for their children.

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