Supreme Court Insights: Carson v. Makin


Scott Blakeman

In a 6-3 decision, 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.

The Carson v. Makin Backstory

In Maine, 143 of its 260 school districts do not operate public high schools. To provide children with universal access to education, the state of Maine operates a tuition assistance program that helps pay tuition “at the public school or the approved private school of the parent’s choice.”

Unfortunately, since 1980, parents have been forbidden from using this program to send their children to private schools deemed “sectarian” (i.e., religious) while the state allows them to be sent to other private schools.

For years, the state of Maine argued (and the U.S. Court of Appeals for the First Circuit eventually agreed) that it could deny parents the ability to use generally available funds to send their children to private religious schools that teach from a faith perspective.

Maine wrongly argued that a religious school couldn’t be discriminated against based on its status as a religious school, but it could be denied access to publicly available funds, if it acted on its faith and convictions.  In other words, if a school merely called itself Christian, Catholic, Jewish, etc., that was fine, but if the religious school actually did religious things like teaching the tenets of their faith, that was a step too far.

6 Takeaways from the Carson v. Makin Case

Takeaway #1: States cannot discriminate against religious organizations based on how the organization uses generally available public funds.

The Court had already made it clear in prior rulings that the government cannot discriminate against a religious organization based on its status as a religious institution. Carson rightly takes this a step further and recognizes that the government cannot discriminate based on the religious actions the organization carries out with the funds they’re provided. Meaning if a religious school is provided funds from the government, those funds can be used to further the school’s religious mission.

Takeaway #2: Six Justices wrote approvingly of the mission of religious schools

The Court stated that “[t]his case illustrates why. “[e]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”” The Supreme Court recognized that religious schools are a vital part of our country’s education ecosystem and help form and fashion future generations.

Takeaway #3: A majority of the Court agree that religious schools must be given discretion in determining what religious education looks like.

The Carson v. Makin ruling helps reassert the proper role of the Establishment Clause, which has unfortunately been improperly used to curtail free exercise rights.

The Court cautioned the state against questioning how religious schools pursue their educational mission. To ask those sorts of questions would raise serious constitutional concerns. The Chief Justice noted that “by scrutinizing whether and how a religious school pursues its educational mission would…raise serious concerns about state entanglement with religion and denominational favoritism.”

Takeaway #4: The Supreme Court focused on the negative effect government discrimination had on religion.

For the Court, it did not matter how Maine described its tuition benefit program or its restriction on religious schools. The Court notes that, “Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment.

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.” The Supreme Court assessed how Maine’s program actually operated. In the future, governments will not be able to evade the Supreme Court’s ruling in Carson and discriminate against religious organizations based on clever language.

Takeaway #5: The Carson decision was built on the foundation of three previous SCOTUS victories.

In Witters v. Washington Department of Services for the Blind (1986), argued by current ADF President and CEO Michael Farris, the Court unanimously determined that the establishment clause did not prevent states from giving financial assistance to students seeking religious instruction. It did not, however, require states to do so.

In ADF’s case Trinity Lutheran Church of Columbia v. Comer (2017), the justices found that denying a religious school access to the same government funds made available to secular schools, simply because of that school’s religious affiliation, was not required by the establishment clause, and — for the first time ever — held that such denial was a violation of the free-exercise clause.

In Espinoza v. Montana Department of Revenue (2020), the Court affirmed that state tuition assistance cannot be denied to students attending a private school on the basis of that school’s religious affiliation.

Takeaway #6: Religious Schools don't need to be afraid of being or acting religious.

The Carson decision clearly affirms that religious schools do not need to sacrifice their beliefs or mission to be eligible for and receive generally available public funding. For Christian schools, this means that they are free to be the ministry God calls them to be without fear of unjust discrimination from the government.

What can I do to better protect my ministry?

While the Carson victory is a significant win for religious schools and religious freedom, there will likely be evolving challenges for religious schools. Those who aren’t content with letting religious schools be religious and act in accordance with their sincerely held beliefs are already looking for other avenues of attack.

This could include actions like implementing laws and policies that require religious schools to adopt and abide by certain non-discrimination policies that directly contradict biological reality and God’s intended design for human flourishing.

One of the best defenses a ministry can have is sound governing documents that clearly communicate what your school believes to your student body, parents, and community. You should also create core documents so that your beliefs and practices are memorialized in writing. Finally, you should consistently apply those documents.

Did you know as a member of the ADF Church & Ministry Alliance, our attorneys will review your governing documents and discuss recommendations tailored to protect your religious freedom? Click here to learn more.

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