Court Case
Carson v. Makin
At issue: Must a state include religious schools in its system of public education?
BJC says: No. While there are times religious and secular institutions must be treated the same, states are not required to sponsor explicitly religious activity.
Case Status
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.
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 considered 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,” wrote BJC General Counsel Holly Hollman.
BJC joined a brief with religious and civil-rights organizations defending the state of Maine’s system of public education, which includes nonsectarian private schools as a replacement for public schools in its rural school districts. The program relies on participating private schools that agree to operate under Maine’s nonsectarian requirements for admissions, curriculum and employment. On June 21, 2022, the Supreme Court ruled 6-3 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.
Resources
-
BJC's Amicus Brief
Read BJC’s friend-of-the-court brief for a deeper understanding of the case.
-
A Discussion of the Ruling's Impact
In this episode, Amanda and Holly examine the Carson v. Makin decision, which shows how the Supreme Court is shifting further and further away from the Establishment Clause’s protections of religious liberty for all.
Quotes From BJC's Amicus 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.”
BJC's Press Release Responding to the Ruling
June 21, 2022
WASHINGTON – Today, the U.S. Supreme Court issued a 6-3 decision in Carson v. Makin, 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 (Baptist Joint Committee for Religious Liberty) joined a friend-of-the-court brief in support of Maine. BJC General Counsel Holly Hollman released the following statement today:
The Court’s decision to require Maine to fund religious instruction threatens our nation’s commitment to religious freedom and the understanding of church-state separation that protects it. A majority of justices on the Supreme Court keep ignoring the distinctive role of religion in law and society, which is best served by separating the institutions of religion and government. That separation, which Maine sought to protect, is an important part of America’s religious liberty legacy, and it’s a key principle for historic Baptists and others who have long championed religious liberty for all and public education.
Today’s opinion in Carson v. Makin follows a recent trend away from treating religious institutions in distinct ways to avoid government involvement in religious matters. In Espinoza v. Montana Department of Revenue (2020) and Trinity Lutheran Church v. Comer (2017), the Court found the Free Exercise Clause required equal treatment of religious institutions for participation in a scholarship program and playground improvement grant program. Today’s decision goes a step farther by requiring funding of religious education in Maine’s tuition program.
BJC remains committed to our core principles of religious freedom. 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.
Holly Hollman: Forcing States to Fund Religion
In Carson v. Makin, parents are seeking state support for their children’s private religious education. BJC and its allies are urging the Court to recognize the historical reasons for keeping the government out of religion. Founding era concerns should be well known to a Court that claims history as its guide to interpreting the Constitution. Those concerns include protecting individual conscience, respecting inherent limits of government authority in religious matters, and avoiding the creation of divisions based on religious differences. As a result, state constitutions and other laws prohibited aid to religious institutions. With history and prior precedents in mind, the Court should uphold Maine’s system for providing a free public education without sponsoring religious education — but we are fighting an uphill battle.
The Carson case marks the third time in only five years that the Court will consider a case involving a religious claim to participate in a government program that conflicts with a state’s legitimate interest in avoiding the funding of religion. In Trinity Lutheran v. Comer (2017), the Court rejected Missouri’s ban on aid to churches as applied to a program that provided grants for playground materials made of recycled tires. The secular nature of the program allowed the Court to ignore historic reasons for keeping the state out of church business. In Espinoza v. Montana (2020), the Court went further and held that a Montana tax credit program that funded scholarships to private schools must include private religious schools, notwithstanding Montana law intended to separate church and state. In both cases, the Court purported simply to uphold a principle of nondiscrimination. According to the decisions, the programs violated the Free Exercise Clause because they excluded potential beneficiaries based on their religious status. The Carson case tests whether this Free Exercise Clause nondiscrimination rule will be extended to prohibit state programs that are designed to avoid government involvement in religious uses of government funds — such as the explicitly religious activity of providing an education designed to instill a biblical worldview. In our view, it should not.
The Religion Clauses of the First Amendment to the U.S. Constitution protect the free exercise of religion and protect against government establishment of religion. These provisions have long been understood to have a common purpose. Together, the Religion Clauses along with Article VI of the Constitution (which prohibits any religious test for office) form the legal framework for religious liberty that has been a model of success. 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.
As we argue in an amicus brief in support of Maine, that approach is at odds with the history and design of the Religion Clauses. Protections for the free exercise of religion were adopted alongside provisions prohibiting any compelled support for religion. Ignoring the common purpose of these protections — to secure religious liberty — threatens to harm the public’s appreciation for religion and its special place in our constitutional order and society. Religious individuals and religious institutions are uniquely responsible for shaping their beliefs and promoting their faith. The government’s role in religious education is and should be limited. An interpretation of religious freedom that privileges religious practices and requires government support of these practices is not likely to be sustainable.
Previous rulings opened the door for state programs to fund education in religious schools, which had been considered constitutionally off-limits. Two decades ago, the Court upheld an Ohio school voucher program against a challenge that it violated the Constitution’s ban on the establishment of religion. The Court found in Zelman v. Simmons-Harris (2002) that the Cleveland pilot program at issue was one of “genuine private choice” by parents and thus was permissible even if a majority of program funding would go toward tuition at private religious schools. Such programs remain controversial. There was no hint in that case that the Free Exercise Clause would require Ohio to include religious schools in its school choice program, much less that such a requirement could apply in a program like the one in Carson that only involves funding public education across Maine’s small rural population. Recently, the Court has recognized the significant differences between secular education and religious education in cases applying the “ministerial exception” to teachers in private religious schools. To ignore those differences in the Carson case would mark a complete shift in the Court’s interpretation of the Religion Clauses and the values that undergird them.