An emboldened religious right wants the public to pay for its schools.

The plaintiffs in Carson v. Makin, a case being heard next Wednesday, December 8, begin their brief to the Supreme Court with an absolutely ridiculous historical comparison.

“In the 19th century, Maine’s public schools expelled students for adhering to their faith,” they claim, citing one example of a Catholic student expelled for not completing lessons off a Protestant bible. Now, according to the brief, Maine is committing a similarly repugnant sin against religious people by refusing to pay state residents’ tuition at private religious schools.

Under this reasoning, there is no relevant difference between denying a public education to a Catholic student and refusing to pay for private religious education. “The times are different,” the plaintiffs’ brief claims, “but the result is the same: denial of educational opportunity through religious discrimination.”

Carson, in other words, represents a significant escalation in the war over whether the government can enact policies of which religious people — and religious conservatives on the Supreme Court — disapprove. It moves the battleground from whether religious conservatives can seek exemptions from individual laws to whether they can also demand that the public actively fund their faith.

Typically, the Court’s “religious liberty” docket involves laws and policies that prohibit religious parties from acting in a way they believe is consistent with their faith. A church wishes to hold a crowded service, for example, in violation of a public health order limiting the number of people who can gather at one time during a pandemic. Or, an employer wishes to provide its employees with a health plan that excludes birth control in violation of a federal regulation requiring the insurance to cover contraceptive care.

But Carson is not like these cases. It claims the state of Maine must spend existing tax revenue from its secular residents to pay the private school tuition of some religious students. No one in Maine is prohibited from sending their children to a religious private school. The plaintiffs in Carson already send at least one child to such schools. The question is whether the Constitution requires the government — and, by extension, anyone who pays taxes to that government — to subsidize religious education.

Notably, the state could also wind up having to pay for hate speech in the process. According to Maine’s brief, both of the plaintiff families in Carson want the state to pay for tuition at schools that discriminate against LGBTQ students and teachers. One of those schools allegedly requires teachers to sign an employment agreement stating that “the Bible says that ‘God recognize[s] homosexuals and other deviants as perverted’” and that “[s]uch deviation from Scriptural standards is grounds for termination.’”

To be fair, Carson also involves Maine’s fairly unusual public school vouchers program, so it’s unclear what immediate impact a victory for the plaintiffs in this case would have in other states. Although much of Maine operates ordinary public schools run by local school districts, some students — predominantly those who live in sparsely populated areas where there is no local school — are not assigned to a particular school. Instead, the state offers to pay the private school tuition of those nearly 5,000 students, who would otherwise have no access to a free education.

Only “nonsectarian” schools are eligible for this subsidy. Parents can still choose to send their children to an institution that seeks to inculcate those children into a particular religious faith, but they won’t receive state funds to do so.

Nevertheless, the plaintiffs in Carson claim Maine is constitutionally obligated to subsidize religious education, at least so long as it provides similar funds for secular private education.

It’s the sort of argument that would have had little chance of prevailing until fairly recently, but that is likely to prevail in a Supreme Court dominated by conservative Republicans who are quite sympathetic to the religious right.

Just last year, the Court took a significant step toward tearing down the distinction between laws that impose unwanted obligations on people of faith and laws that merely deny taxpayer dollars to religious institutions. In a worst-case scenario for the separation of church and state, Carson could obliterate that distinction.

How we got to the point where the Carson plaintiffs’ arguments are taken seriously

At the outset, the plaintiffs’ main argument in Carson seeks to push the Roberts Court’s growing deference to religion to a new level, further divorcing it from the text of the Constitution itself. The bulk of their brief argues that Maine’s system violates the Constitution’s free exercise clause, which generally bans laws “prohibiting the free exercise” of religion.

The key word here is “prohibiting.” Again, no one in Maine is prohibited from doing anything because of the state’s decision to pay tuition at only some private schools. Both of the plaintiff families in Carson currently send children to religious private schools that are ineligible for subsidies. The only question in Carson is whether Maine must use tax dollars to pay for this religious education.

Barely two decades ago, there was a serious constitutional debate about whether states are even permitted to fund religious education. As established in Everson v. Board of Education (1947), longstanding precedent holds that “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” In 2002, Zelman v. Simmons-Harris asked the court to consider a school voucher program that primarily benefited religious schools. Though a majority of the Court abandoned Everson’s strict approach in this case, four justices dissented and would have applied the stricter rule.

Yet even after Zelman, the Court largely viewed the question of whether to subsidize religious education as a matter within lawmakers’ discretion.

Until the Roberts Court.

Most notably, in Espinoza v. Montana Department of Revenue (2020), the Court held that states must subsidize religiously affiliated schools under certain circumstances. Espinoza held that a state may not deny a subsidy to a religious institution “simply because of what it is” — that is, simply because the institution identifies with a particular faith.

But Espinoza also maintained a distinction between religious “status” and religious “use,” which is particularly relevant to the Carson case now before the Court.

Suppose, for example, a state provides grants to help set up food banks and soup kitchens. If a church wishes to set up a soup kitchen and is otherwise eligible for the grant, it can’t be denied the grant solely because it is a religious institution. Its “status” as a Christian-affiliated entity is not a valid basis to deny a grant under Espinoza.

Now imagine a slightly different church, that wishes to use the state-funded grant to purchase Bibles that will be distributed to people at the soup kitchen. In this scenario, the church is no longer just providing a secular service, food for the hungry. It’s providing an inherently religious service, the distribution of a holy text. This kind of inherently religious activity is what the Court meant by religious “use,” and Espinoza suggests states may still be allowed to deny funding to such activities — even if they can’t deny funding to religious institutions that qualify for subsidies funding secular activity.

And this distinction between religious “status” and religious “use” is now front and center in the Carson case.

The radicalism of the plaintiffs’ arguments in Carson

Although the tuition program at the heart of the Carson case predates Espinoza, it might as well have been designed specifically to survive judicial review after that decision. As the state explains in its brief, Maine determines whether a particular school is “sectarian,” and therefore ineligible for state subsidies, by asking if it “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”

Although “affiliation or association with a church or religious institution is one potential indicator of a sectarian school,” this factor does not determine whether a school is classified as “sectarian.” Rather, the question is “what the school teaches through its curriculum and related activities, and how the material is presented.”

Under Espinoza’s framework, in other words, Carson is a case about religious “use.”

Nevertheless, the plaintiffs seek an expansion of Espinoza, claiming that policies which require religious families to “choose between their religious beliefs and receiving a government benefit” are unconstitutional — and that Maine’s tuition program forces these families to choose between “their right to tuition assistance or their right to freely exercise their religion.”

It’s a deeply radical argument, if taken to its logical end point. This case involves an unusual school voucher program that applies only to a small minority of Maine’s children — mostly students in very rural areas where it is not cost-efficient for the state to operate a public school. But if the Constitution does not permit states to force families to choose between receiving a free education and a religious one, then any public school system is potentially at risk.

Again, the plaintiffs’ argument is that the government cannot require a religious family to “choose between their religious beliefs and receiving a government benefit.” But traditional public education, where students are assigned to a government-run school that offers a free education, is a government benefit. All families that send their children to private, religious schools choose to forgo a free public education. So, if the plaintiffs are correct that families cannot be forced to make this choice, the entire public education system may be required to pay for private tuition at religious schools.

It’s not at all clear that the Court will be willing to go that far. Indeed, in Espinoza, Chief Justice John Roberts’s majority opinion appeared to anticipate this problem, and he attempted to nip it in the bud. “A State need not subsidize private education,” Roberts wrote in Espinoza, “but once a State decides to do so, it cannot disqualify some private schools” because of their religious status.

But Espinoza was also a 5-4 decision, before Justice Ruth Bader Ginsburg’s death gave Republican appointees a supermajority on the Court. And, while Roberts is quite conservative, he’s the least conservative member of the Court’s six-justice Republican majority. Conservative litigants no longer need Roberts’s vote to prevail, and it is unclear whether Roberts’s five more conservative colleagues agree with him that “a State need not subsidize private education.”

Even if they do agree with Roberts in principle, it’s hard to draw a principled line between a school voucher program that excludes religious education and a traditional public school system that excludes religious education. In the likely event the Carson plaintiffs prevail before the Supreme Court, it is probably inevitable that someone in a traditional public school district will file a new lawsuit claiming they are also entitled to have their private school tuition paid for by their state’s taxpayers.