The Volokh Conspiracy
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Exclusion of Religious Schooling from Generally Available School Choice Programs Generally Unconstitutional,
except for the training of the clergy, holds the Supreme Court.
Since Zelman v. Simmons-Harris (2002), the Supreme Court has made clear that school choice programs, which financially support parents' sending children to private schools, may include religious schools, without violating the Establishment Clause—just as university scholarship programs (such as the GI Bill and others) may be used at religious institutions alongside secular institutions without violating the Establishment Clause. But must they include religious schools on basically the same terms as secular schools, in order to comply with the Free Exercise Clause?
In today's decision in Carson v. Makin, the Supreme Court said yes, by a 6-3 vote (following two earlier cases, Trinity Lutheran Church v. Comer and Espinoza v. Montana Dep't of Revenue, that had pointed in this direction, and distinguishing another earlier case, Locke v. Davey, that pointed in the opposite direction). The government need not have school choice programs, of course; it is free to just fund education at government-run public schools. But if it decides to support private education as well, it must do so without discriminating against religious schools.
Here are excerpts from Chief Justice Roberts' majority opinion, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett:
[A.] Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are "nonsectarian." {The Department has stated that, in administering this requirement, it "considers a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith."} The question presented is whether this restriction violates the Free Exercise Clause ….
[B.] The Free Exercise Clause … protects against "indirect coercion or penalties on the free exercise of religion, not just outright prohibitions." In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits….
We have recently applied these principles in the context of two state efforts to withhold otherwise available public benefits from religious organizations. In Trinity Lutheran Church of Columbia, Inc. v. Comer, we considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires. The Missouri Department of Natural Resources maintained an express policy of denying such grants to any applicant owned or controlled by a church, sect, or other religious entity…. [We held] that the Free Exercise Clause did not permit Missouri to "expressly discriminate[] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character." While it was true that Trinity Lutheran remained "free to continue operating as a church," it could enjoy that freedom only "at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center [was] otherwise fully qualified." …
[I]n Espinoza v. Montana Dep't of Revenue (2020), we reached the same conclusion as to a Montana program that provided tax credits to donors who sponsored scholarships for private school tuition…. "A State need not subsidize private education," we concluded, "[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious." …
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…. By "condition[ing] the availability of benefits" [on a school's nonreligious character], Maine's tuition assistance program—like the program in Trinity Lutheran—"effectively penalizes the free exercise" of religion. {[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."} …
[C.] A law that [discriminates based on religion, we held in Espinoza, must be subjected to "the strictest scrutiny." To satisfy strict scrutiny, government action "must advance 'interests of the highest order' and must be narrowly tailored in pursuit of those interests." "A law that targets religious conduct for distinctive treatment … will survive strict scrutiny only in rare cases." …
This is not one of them…. [A] neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. Zelman v. Simmons-Harris (2002). Maine's decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires. But as we explained in both Trinity Lutheran and Espinoza, such an "interest in separating church and state 'more fiercely' than the Federal Constitution … 'cannot qualify as compelling' in the face of the infringement of free exercise." See also Widmar v. Vincent (1981) ("[T]he state interest … in achieving greater separation of church and State than is already ensured under the Establishment Clause … is limited by the Free Exercise Clause.").
Justice Breyer stresses the importance of "government neutrality" when it comes to religious matters, but there is nothing neutral about Maine's program. The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion. A State's antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise….
[D.] The First Circuit held that the "nonsectarian" requirement was constitutional because the benefit was properly viewed not as tuition assistance payments to be used at approved private schools, but instead as funding for the "rough equivalent of the public school education that Maine may permissibly require to be secular." As Maine puts it, "[t]he public benefit Maine is offering is a free public education."
To start with, the statute does not say anything like that. It says that [a school district] without a secondary school of its own "shall pay the tuition … at the public school or the approved private school of the parent's choice at which the student is accepted." The benefit is tuition at a public or private school, selected by the parent, with no suggestion that the "private school" must somehow provide a "public" education.
This reading of the statute is confirmed by the program's operation. The differences between private schools eligible to receive tuition assistance under Maine's program and a Maine public school are numerous and important. To start with the most obvious, private schools are different by definition because they do not have to accept all students…. Second, the free public education that Maine insists it is providing through the tuition assistance program is often not free. That "assistance" is available at private schools that charge several times the maximum benefit that Maine is willing to provide.
Moreover, the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools…. Participating schools need not hire state-certified teachers. And the schools can be single-sex….
[E.] The Court of Appeals also attempted to distinguish this case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were "solely status-based religious discrimination," while the challenged provision here "imposes a use-based restriction." Justice Breyer makes the same argument.
Maine and the dissents invoke Locke v. Davey (2004), in support of the argument that the State may preclude parents from designating a religious school to receive tuition assistance payments. In that case, Washington had established a scholarship fund to assist academically gifted students with postsecondary education expenses. But the program excluded one particular use of the scholarship funds: the "essentially religious endeavor" of pursuing a degree designed to "train[] a minister to lead a congregation." We upheld that restriction against a free exercise challenge, reasoning that the State had "merely chosen not to fund a distinct category of instruction."
Our opinions in Trinity Lutheran and Espinoza, however, have already explained why Locke can be of no help to Maine here. Both precedents emphasized, as did Locke itself, that the funding in Locke was intended to be used "to prepare for the ministry." Funds could be and were used for theology courses; only pursuing a "vocational religious" degree was excluded.
Locke's reasoning expressly turned on what it identified as the "historic and substantial state interest" against using "taxpayer funds to support church leaders." But as we explained at length in Espinoza, "it is clear that there is no 'historic and substantial' tradition against aiding [private religious] schools comparable to the tradition against state-supported clergy invoked by Locke." Locke cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits….
Justice Breyer, joined by Justices Kagan, and, in relevant part, Justice Sotomayor, dissented:
[A.] The First Amendment begins by forbidding the government from "mak[ing] [any] law respecting an establishment of religion" {[which] seems to bar all government "sponsorship, financial support, [or] active involvement … in religious activity"}. It next forbids them to make any law "prohibiting the free exercise thereof." The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.
The majority also fails to recognize the "'play in the joints'" between the two Clauses. That "play" gives States some degree of legislative leeway. It sometimes allows a State to further antiestablishment interests by withholding aid from religious institutions without violating the Constitution's protections for the free exercise of religion…. In my view, Maine's nonsectarian requirement falls squarely within the scope of that constitutional leeway….
[B.] The state-funded program at issue in Trinity Lutheran provided payment for resurfacing school playgrounds to make them safer for children. Any Establishment Clause concerns arising from providing money to religious schools for the creation of safer play yards are readily distinguishable from those raised by providing money to religious schools through the program at issue here—a tuition program designed to ensure that all children receive their constitutionally guaranteed right to a free public education. After all, cities and States normally pay for police forces, fire protection, paved streets, municipal transport, and hosts of other services that benefit churches as well as secular organizations. But paying the salary of a religious teacher as part of a public school tuition program is a different matter.
In addition, schools were excluded from the playground resurfacing program at issue in Trinity Lutheran because of the mere fact that they were "owned or controlled by a church, sect, or other religious entity." Schools were thus disqualified from receiving playground funds "solely because of their religious character," not because of the "religious uses of [the] funding" they would receive. Here, by contrast, a school's "'affiliation or association with a church or religious institution … is not dispositive'" of its ability to receive tuition funds. Instead, Maine chooses not to fund only those schools that "'promot[e] the faith or belief system with which [the schools are] associated and/or presen[t] the [academic] material taught through the lens of this faith'"—i.e., schools that will use public money for religious purposes. Ibid. Maine thus excludes schools from its tuition program not because of the schools' religious character but because the schools will use the funds to teach and promote religious ideals….
[C.] [Unlike the religious schools involved in this case], public schools, including those in Maine, seek first and foremost to provide a primarily civic education. We have said that, in doing so, they comprise "a most vital civic institution for the preservation of a democratic system of government, and … the primary vehicle for transmitting the values on which our society rests." To play that role effectively, public schools are religiously neutral, neither disparaging nor promoting any one particular system of religious beliefs. We accordingly have, as explained above, consistently required public school education to be free from religious affiliation or indoctrination.
Maine legislators who endorsed the State's nonsectarian requirement recognized these differences between public and religious education. They did not want Maine taxpayers to finance, through a tuition program designed to ensure the provision of free public education, schools that would use state money for teaching religious practices.
Underlying these views is the belief that the Establishment Clause seeks government neutrality. And the legislators thought that government payment for this kind of religious education would be antithetical to the religiously neutral education that the Establishment Clause requires in public schools. Maine's nonsectarian requirement, they believed, furthered the State's antiestablishment interests in not promoting religion in its public school system; the requirement prevented public funds—funds allocated to ensure that all children receive their constitutional right to a free public education—from being given to schools that would use the funds to promote religion.
In the majority's view, the fact that private individuals, not Maine itself, choose to spend the State's money on religious education saves Maine's program from Establishment Clause condemnation. But that fact, as I have said, simply permits Maine to route funds to religious schools. See, e.g., Zelman. It does not require Maine to spend its money in that way. That is because, as explained above, this Court has long followed a legal doctrine that gives States flexibility to navigate the tension between the two Religion Clauses….
[D.] In my view, Maine's nonsectarian requirement is also constitutional because it supports, rather than undermines, the Religion Clauses' goal of avoiding religious strife. Forcing Maine to fund schools that provide the sort of religiously integrated education offered by Bangor Christian and Temple Academy creates a similar potential for religious strife as that raised by promoting religion in public schools. It may appear to some that the State favors a particular religion over others, or favors religion over nonreligion.
Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education. Taxpayers may be upset at having to finance the propagation of religious beliefs that they do not share and with which they disagree. And parents in school districts that have a public secondary school may feel indignant that only some families in the State—those families in the more rural districts without public schools—have the opportunity to give their children a Maine-funded religious education.
Maine legislators who endorsed the State's nonsectarian requirement understood this potential for social conflict. They recognized the important rights that religious schools have to create the sort of religiously inspired curriculum that Bangor Christian and Temple Academy teach.
Legislators also recognized that these private schools make religiously based enrollment and hiring decisions. Bangor Christian and Temple Academy, for example, have admissions policies that allow them to deny enrollment to students based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians. Legislators did not want Maine taxpayers to pay for these religiously based practices—practices not universally endorsed by all citizens of the State—for fear that doing so would cause a significant number of Maine citizens discomfort or displeasure. The nonsectarian requirement helped avoid this conflict—the precise kind of social conflict that the Religion Clauses themselves sought to avoid.
Maine's nonsectarian requirement also serves to avoid religious strife between the State and the religious schools. Given that Maine is funding the schools as part of its effort to ensure that all children receive the basic public education to which they are entitled, Maine has an interest in ensuring that the education provided at these schools meets certain curriculum standards.
Religious schools, on the other hand, have an interest in teaching a curriculum that advances the tenets of their religion. And the schools are of course entitled to teach subjects in the way that best reflects their religious beliefs. But the State may disagree with the particular manner in which the schools have decided that these subjects should be taught.
This is a situation ripe for conflict, as it forces Maine into the position of evaluating the adequacy or appropriateness of the schools' religiously inspired curriculum. Maine does not want this role. As one legislator explained, one of the reasons for the nonsectarian requirement was that "[g]overnment officials cannot, and should not, review the religious teachings of religious schools." Another legislator cautioned that the State would be unable to "reconcile" the curriculum of "private religious schools who teach religion in the classroom" with Maine "standards … that do not include any sort of religion in them."
Nor do the schools want Maine in this role. Bangor Christian asserted that it would only consider accepting public funds if it "did not have to make any changes in how it operates." Temple Academy similarly stated that it would only accept state money if it had "in writing that the school would not have to alter its admissions standards, hiring standards, or curriculum." The nonsectarian requirement ensures that Maine is not pitted against private religious schools in these battles over curriculum or operations, thereby avoiding the social strife resulting from this state-versus-religion confrontation. By invalidating the nonsectarian requirement, the majority today subjects the State, the schools, and the people of Maine to social conflict of a kind that they, and the Religion Clauses, sought to prevent….
[E.] [T]he Establishment Clause forbids a State from paying for the practice of religion itself. And state neutrality in respect to the teaching of the practice of religion lies at the heart of this Clause. See, e.g., Locke (noting that there are "few areas in which a State's antiestablishment interests come more into play" than state funding of ministers who will "lead [their] congregation[s]" in "religious endeavor[s]"). There is no meaningful difference between a State's payment of the salary of a religious minister and the salary of someone who will teach the practice of religion to a person's children. At bottom, there is almost no area "as central to religious belief as the shaping, through primary education, of the next generation's minds and spirits." The Establishment Clause was intended to keep the State out of this area….
Justice Sotomayor largely endorsed Justice Breyer's dissent, but also argued that the Court erred in Trinity Lutheran, the playground resurfacing case (in which Justice Breyer concurred in the judgment); she also added:
[T]he Court's decision is especially perverse because the benefit at issue is the public education to which all of Maine's children are entitled under the State Constitution. As this Court has long recognized, the Establishment Clause requires that public education be secular and neutral as to religion. The Court avoids this framing of Maine's benefit because, it says, "Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice." In fact, any such "deci[sion]" was forced upon Maine by "the realities of remote geography and low population density," which render it impracticable for the State to operate its own schools in many communities….
[I]t is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today's result….
I think Chief Justice Roberts is correct (and I think Justices Scalia and Thomas were correct in the Locke v. Davey dissent), especially in light of the longstanding precedents that the Free Exercise Clause generally does ban discriminatory denial of benefits and not just outright criminalization of religious practice or imposition of civil liability on such practice. (For an interesting argument that, given the word "prohibit" in the Free Exercise Clause, those longstanding precedents are mistaken, though perhaps the Equal Protection Clause might impose a similar command, see this post at The Originalism Blog by Will Foster; for an argument supporting the precedents, see this article by Prof. Michael McConnell.) But here I basically just wanted to pass along the key arguments from the opinions.
Congratulations to Michael Bindas (Institute for Justice), who argued the case for petitioners, and his IJ colleagues Arif Panju and Kirby Thomas West, who were on the brief with him.
