Carson v. Makin


Must a state include religious schools in its system of public education?


No. While there are times religious and secular institutions must be treated the same, states are not required by the U.S. Constitution to sponsor explicitly religious activity. 

Maine created a tuition program to provide a public education for students who live in remote areas that are unable to support their own public school(s). Unlike a school voucher program that offers a range of choices between public or private schools, Maine’s tuition program is designed to provide a public school education. The program relies on participating private schools that agree to operate under Maine’s nonsectarian requirements for admissions, curriculum and employment.

This case marks the third time in only five years that the U.S. Supreme Court will consider a case involving a religious claim to participate in a government program that conflicts with a state’s legitimate interest in not funding religion. 

“Unfortunately, the current Supreme Court is moving toward a vision of religious liberty that expands free exercise to a point that directly threatens principles of no establishment,” BJC General Counsel Holly Hollman wrote about the case



The U.S. Supreme Court issued a 6-3 decision on June 21, 2022, ruling that Maine is required to provide tuition at religious schools in its taxpayer-funded, state-run program that is intended to provide students with a public education.

BJC blasted the decision. “Forcing taxpayers to fund religious education undermines the secular nature of our government and the freedom of religious institutions to engage in ministry without government interference,” Hollman said

BJC joined a brief with religious and civil rights organizations defending the state’s system of public education.

From BJC’s brief

“Historical evidence, from the founding era through the adoption of the Fourteenth Amendment, makes clear that the Free Exercise Clause does not require states to fund religious instruction—an activity central to the maintenance and growth of ministries—on an equal basis with secular education.”

“Requiring Maine to fund religious instruction here would eliminate the distinction between impermissibly discriminating against a religious institution based on its status and permissibly choosing not to provide taxpayer funds for specifically religious uses.”

“Maine permissibly chose, in a program intended to further public education, to prohibit the use of coerced taxpayer funds for religious instruction. It did not discriminate based on religious status.”

“Post-founding history through the passage of the Fourteenth Amendment only strengthens the conclusion that Maine’s program is constitutional. After the Bill of Rights’ ratification, most new states that joined the Union enacted constitutional provisions prohibiting compelled taxpayer support for religious instruction, and states that had originally funded religious teaching stopped that practice. Isolated examples of state funding for religious education do not demonstrate that such funding was required at the time, or that a program like Maine’s would have been viewed as unconstitutional in the eighteenth or nineteenth centuries. Maine’s program should not be held unconstitutional today.

“Because the federal Free Exercise Clause was based on state understandings of religious freedom, it cannot be the case that the Clause required something that many states expressly forbade—namely, compelled taxpayer support for religious instruction. Yet petitioners’ case depends on exactly that contention. The historical record from the founding era simply does not support such an expansive reading of what the Free Exercise Clause means.”

“In short, neither this Court’s precedent nor historical practices support a conclusion that Maine is required to use tax payments to fund distinctly religious instruction. Doing so would have squarely violated antiestablishment principles in many states in the founding and post-founding eras. But even where the applicable federal or state constitutional provision might have permitted funding religious instruction, there is simply no evidence that the Free Exercise Clause was intended or understood to require it. Maine’s program thus falls well within the permissible range of choices that the Constitution leaves to the states. It should be upheld.”