The Volokh Conspiracy

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My Deseret News Article on Carson v. Makin

The article explains why the Supreme Court was right to hold that state voucher programs can’t discriminate against “sectarian” religious schools and addresses various objections.


Yesterday, the Deseret News published my article on last week's Supreme Court decision in Carson v. Makin, which bars state school choice programs from discriminating against "sectarian" religious schools. This piece is a much-expanded version of some of the points made in my earlier NBC News article about the same case.

Thanks to the uproar over the Supreme Court's abortion ruling, the Deseret News piece was delayed by a couple days. This gave me a chance to go over other commentary on Carson, and address a number of criticisms of the ruling. Many thanks to the Deseret News for their generosity when it comes to space.

Here is an excerpt from the new article:

In its recent 6-3 decision in Carson v. Makin, the Supreme Court struck down a Maine law that prevented parents from using state-funded vouchers for their children's education at religious schools. In most ways, the decision is a modest extension of previous precedents barring government from discriminating on the basis of religion. The case does make clear that states cannot discriminate against religious institutions based on "religious use" of funds, as well their religious "status," thereby plugging a potential loophole states might have used to exclude religious entities and individuals from various government programs….

Still, many fear that Carson will have dire consequences. Critics have claimed it will exacerbate "religious strife," undermine the Establishment Clause of the First Amendment, destroy the separation of church and state, lead states to discriminate against Jewish and Muslim schools, and even empower Christian nationalists. Such concerns are misplaced….

As Chief Justice John Roberts put it in his majority opinion in Carson, "a State violates the Free Exercise Clause [of the First Amendment] when it excludes religious observers from otherwise available public bene­fits," merely because they are religious. Thus, a state may not reserve welfare benefits for Christians, while denying them to adherents of other religions, or to secularists….

In his dissenting opinion, Justice Stephen Breyer argued that the Maine situation is different, because the state discriminated on the basis of "religious use," not "status" alone…. Thus, it is claimed, Maine's program is constitutional because it bars the use of funds for religious purposes, not merely their distribution to institutions with a religious affiliation.

This "status-use" distinction makes little sense. Almost any religious school "promotes" its faith at least to some extent. Barring "sectarian" schools essentially means barring virtually all religious schools. The status-use theory would readily be rejected in virtually any other context. If, for example, the government denied welfare benefits to people who intend to use some of the money for religious purposes, that obviously would be unconstitutional discrimination. Ditto if the government decided to withhold police and fire department services from a church or synagogue because those services facilitate the use of the building for religious worship….

While the Establishment Clause does bar targeted government support of religion, it has never been interpreted as requiring categorical exclusion of religious institutions from otherwise generally available government programs. Virtually no one claims that the Establishment Clause is violated when the federal government awards Pell Grants to students attending religious universities such as Notre Dame and Brigham Young University, even though those schools use some of the tuition money for "specifically religious" activities.

The same point applies to Justice Sonia Sotomayor's insistence, in her dissenting opinion, that Carson will take the nation "to a place where the separation of church and state becomes a constitutional violation." No plausible interpretation of  "separation of church and state" requires the government to bar religious institutions from generally available government benefits and services. Otherwise, separation is undermined anytime a student uses federally subsidized loans to attend BYU, or a fire department puts out a fire at a mosque….

Washington Post columnist Jennifer Rubin claims Carson advances "the desires of Christian nationalists who seek to use the power of the state to impose their views." The truth is the exact opposite. Nothing in the court's ruling requires anyone to send their children to Christian schools or live by Christian views. To the contrary, Carson's nondiscrimination rule bars discrimination in favor of Christian institutions (or religious institutions generally) no less than discrimination against them….

Some nonetheless fear that school choice programs that include religious schools will bar Muslim and Jewish institutions, particularly in red states…..

There is indeed extensive Islamophobia in many quarters of the political right (recall Donald Trump's anti-Muslim travel bans), and antisemitism is also present in our society. Nonetheless, Jewish and Muslim schools have participated on an equal basis in school choice programs around the country, including in red states like Florida, Louisiana and Arizona. Perhaps for this reason, the Council of Islamic Schools of North America and the Union of Orthodox Jewish Congregations of America filed a joint amicus brief supporting the plaintiffs in Carson…

If some nonetheless worry that state governments will discriminate against minority groups, they should be wary of granting states a monopoly over education curricula for that very reason. Historically, state public education systems have indeed often discriminated against racial, ethnic and religious minorities. Broadly inclusive school choice programs can reduce that risk…. The less you trust conservative state governments (or liberal ones), the more reason you have to support school choice in those states.