In ‘worrisome’ oral arguments at the U.S. Supreme Court, justices characterize state’s refusal to fund religious education as ‘discrimination’

by | Dec 9, 2021

In Carson v. Makin, the issue is a program in Maine that provides state funding for parents in areas that lack a public high school to send their children to private schools that offer secular education. Plaintiffs claim the exclusion of sectarian religious schools from the program violates the Free Exercise Clause of the First Amendment. Although a trial court and the 1st U.S. Circuit Court of Appeals rejected that view, the U.S. Supreme Court sounds poised to agree, based on Wednesday’s oral arguments in the case.

BJC joined a brief in the case urging the Court to uphold Maine’s program (for more background on the case, check out season 3, episode 5 of BJC’s Respecting Religion podcast). Their argument rests on the principle that states should be allowed to protect taxpayers from being forced to fund distinctly religious activities; or, as BJC General Counsel Holly Hollman warned in a recent column about the case, “[t]he 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.”

The oral arguments in the case suggest there are a majority of justices who believe the state should be required to include sectarian religious education in school funding programs. BJC Executive Director Amanda Tyler tweeted her concern shortly after arguments ended:

Today’s SCOTUS arguments in Carson v. Makin were very worrisome. At stake is one of the key values of the 1st Amendment’s protection of religious freedom — government neutrality towards religion. Six members of the Court seem ready to label that as religious discrimination.


The Court may try to make its ruling seem limited but recent experience (Trinity Lutheran, Espinoza) shows that requiring government funding of religious organizations in seemingly narrow cases will be used next time to distort the religion clauses beyond recognition.

Both audio and transcript of the arguments are now available. Below are some notable excerpts from the transcript. First up, attorney for the plaintiffs seems to concede that the state may have a sufficient interest in excluding religious education from the program if schools received direct funding from the state, rather than through the independent choice of parents:

MR. BINDAS: This program does not fund schools. … It funds families. And not a penny can go to any school but for the genuine private choice of individuals. …[T]hat private independent choice severs the link between government funds and religious instruction.


CHIEF JUSTICE ROBERTS: Well — well, let’s consider whether that’s not the case. Let’s say a state has — thinks the schools around the state are — you know, they need better physical facilities. They have a program that they’re going to give money to schools so long as they spend it on building. And they’re going to give it to private schools too because building is good for education there. And they’re going to give it to religious schools. But, with religious schools, they say, look, you can’t use this money to build a chapel, but you can use it for anything else. Is that … is that okay or not?


MR. BINDAS: I suspect the government would very well have a compelling interest in that case, Your Honor, because we’re talking about direct institutional aid. And when you’re dealing with direct institutional aid, the government is quite literally funding the thing. But, here, government is simply doing this: It’s providing a benefit, a financial benefit to families, and it’s saying use it where you will.

Next, Justice Elena Kagan gets to a key issue with the plaintiff’s attorney: whether the state should have some freedom in deciding how to draw the line between proper and improper funding that entangles it with religion, comparing this case to a previous school voucher case (Zelman), in which the Court ruled a school district is allowed to implement a voucher program that includes private religious schools. Here, she notes, the question is, must they:

JUSTICE KAGAN: Zelman was a case in which the question was could a locality implement such a program. And the question here is different, is does the locality have to implement such a program. And what — what we have often talked about in our First Amendment religion cases is this idea of play in the joints, that not everybody has to follow the same model and that there is some amount of funding which is neither prohibited by the First Amendment nor commanded by the First Amendment. And — and, essentially, what Maine is saying here is like, all well and good if a locality or if a state wants to do this, but we weigh the interests differently, and shouldn’t we be allowed to weigh the interests differently?


MR. BINDAS: We know that the Establishment Clause allows it. Zelman tells us. We also know that the Free Exercise Clause doesn’t require it. In Espinoza, the Court held a state need not subsidize private education. Whether to have such a program is the quintessential play in the joints.


JUSTICE KAGAN: But the point here, I suppose, is this, is that some states would, you know, have such programs and love them. And another state says, for the reasons that Justice Breyer gave, you know, we think that this would be incredibly divisive in our community, and you can think of a wide variety of reasons why that would be. It would lead to too great entanglement. It’s not good for the religion itself. Or other people in our community won’t understand why we’re funding this program. I mean, these schools are overtly discriminatory. They’re proudly discriminatory. Other people won’t understand why in the world their taxpayer dollars are going to discriminatory schools. For any of a number of reasons, a state can say we don’t want to play in this game. And the question is, isn’t this play-in-the-joints idea, wasn’t it specifically understood to allow different kinds of solutions in different sorts of areas?


MR. BINDAS: In Espinoza, this Court specifically rejected any test that would turn on weighing the benefit and the exclusion against some general state interest in avoiding religious conflict. I think the Court has already rejected any such test when you’re dealing with a program, at least one that operates and turns exclusively on the private choice of parents. It might be a different situation if we were talking institutionally, but not in a program like this, Your Honor.

Finally, in addressing Justice Brett Kavanaugh, the attorney for Maine explains the stakes and potential for social discord in requiring taxpayer dollars to fund religious indoctrination:

JUSTICE KAVANAUGH: What do you say to those who would say by excluding someone who’s religious from a state program and creating this feeling of exclusion for people who are told your school isn’t good enough solely because it’s religious…doesn’t that also create a possibility of — of strife?


MR. TAUB: So a few points there, Your Honor. I — I think what the real strife would be, first of all, I think there would be strife among parents who live in districts that have public schools or contract with schools, because I think the strife there would be, how come I can’t send my kids to religious schools at public expense but these other kids can? So I think that — that — that’s one source of strife. I think another source of strife would be trying to explain to taxpayers in Maine why your money is being used to go to a school that teaches that boys are better than girls, that actively discriminates against certain protected classes. So I think that’s — that that’s a second element of strife.

A decision is expected sometime before the end of June 2022. Next week on Respecting Religion, Amanda and Holly will discuss these oral arguments in more detail – be sure you are subscribed wherever you get your podcasts!