Carson v. Makin is a serious, but not fatal, blow to the wall separating church and state.
The decision was 6-3, along partisan lines.
The specific program at issue in Carson is unusual to Maine. About 5,000 students in Maine’s most rural areas, where it is not cost-efficient for the state to operate a public school, receive tuition vouchers that can be used to pay for private education. Maine law provides that these vouchers may only be used at “nonsectarian” schools, not religious ones.
Carson struck down this law excluding religious schools from the Maine voucher program, and that decision could have broad implications far beyond the few thousand students in Maine who benefit from these tuition subsidies.
Not that long ago, the Court required the government to remain neutral on questions of religion — a requirement that flowed from the First Amendment’s command that the government “shall make no law respecting an establishment of religion.” In practice, that meant that the government could neither impose burdens on religious institutions that it didn’t impose on others, nor could it actively subsidize religion.
Carson turns this neutrality rule on its head, holding that government benefit programs that exclude religious institutions engage in “discrimination against religion” that violates the Constitution.
At the same time, however, Carson also contains significant language confining the scope of this new rule. If the government cannot create benefit programs that exclude religion, then under the most extreme version of this argument, it is unclear why traditional public schools — which provide secular but not religious education — are constitutional. Secular public schools, after all, are government institutions that maintain neutrality toward religion. And, under the new rule announced in Carson, neutrality is unconstitutional discrimination.
But Chief Justice John Roberts’s opinion in Carson states explicitly that “Maine may provide a strictly secular education in its public schools.” And it reaffirms the Court’s holding in a 2020 decision that “a State need not subsidize private education.” That means that most students who receive a state-subsidized education will not be indoctrinated into a faith.
Nevertheless, one upshot of the Carson decision is that Maine’s taxpayers will be forced to pay for education that many of them will view as offensive. As the state explained in its brief, the plaintiff families in this case want the state to pay at least part of the tuition at private schools that discriminate against LGBTQ teachers and students. One of these schools allegedly requires teachers to agree 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.’”
After Tuesday’s decision, these families are all but certain to get their wish — Maine would have to significantly rework its education policies to avoid such an outcome — and Maine’s taxpayers will soon have to fund education at schools with outlandish or even bigoted worldviews.
Maine’s school voucher program, briefly explained
Carson arises out of an unusual tuition voucher program that Maine uses to educate students in its most sparsely populated areas. As Roberts explains in the Court’s majority opinion, “Maine is the most rural State in the Union.” And that makes it impractical for the state to provide traditional public schools in areas where the few school-age residents live very far apart.
Rather than offer these students a traditional public education at a state-run school, Maine offers many of them a voucher that will pay up to a certain amount of tuition “at the public school or the approved private school of the parent’s choice at which the student is accepted.”
Prior to the Court’s decision in Carson, however, these vouchers could only pay for tuition at “nonsectarian” schools. A school that promotes a “faith or belief system” or “presents the material taught through the lens of this faith” was not eligible to receive state subsidies.
Carson strikes down this requirement that state subsidies for private education only go to secular schools. And it does so by significantly reworking the Constitution’s approach to religion more broadly.
The Court’s Republican appointees view neutrality toward religion as a form of discrimination
Two decades ago, there was a serious constitutional debate about whether the government is even permitted to fund religious education. In Everson v. Board of Education (1947), the Court declared 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.” That seemed to rule out government programs that fund religious education altogether.
In Zelman v. Simmons-Harris (2002), however, a 5-4 Court abandoned Everson’s strict rule against government funding of religion. But Zelman merely established that states could offer tuition vouchers that fund private religious education if they choose to do so. Nothing in Zelman prohibited states from maintaining a neutral posture on religion — funding secular education but not religious education, as Maine did for several decades. It simply left the matter up to each state’s legislators.
The Court’s new decision in Carson inverts the rule established in Everson, holding that it is now a constitutional violation for the government to subsidize secular private education but not religious education. Maine’s program, Roberts writes, “pays tuition for certain students at private schools — so long as the schools are not religious.” That, he claims, “is discrimination against religion.”
Roberts’s opinion also rejects a distinction between government programs that exclude groups because of their religious “status” and programs that exclude groups because of their religious “use.”
In Locke v. Davey (2004), the Supreme Court upheld a Washington state scholarship program that funded education at both secular and religious colleges, but that did not provide scholarships to students who wished to study “devotional theology.” Subsequent court cases, including the lower court decision in Carson, interpreted Locke to permit state programs that do not fund instruction on religion.
More broadly, this interpretation of Locke suggested that states could not deny funding to an organization strictly because it had a religious identity. But they could deny funding if that organization was going to use government funds to pay for a religious activity.
Think of it this way: Suppose that a state provides grants to help private institutions set up food banks and soup kitchens. If a church sought one of these grants, it could not be denied because of its Christian identity. But the state could require the church to spend 100 percent of the grant money it receives on secular activities such as feeding the poor, and not on religious activity such as distributing Bibles to the needy.
Carson effectively eliminates this distinction between organizations that have a religious identity, and organizations that want to use government funds for religious purposes. After Carson, a private school may not only receive a government tuition subsidy, it may also use that subsidy to fund explicitly religious instruction.
Traditional public schools probably are not endangered by Carson
The one silver lining in Carson, for anyone who cares about the separation of church and state, is that Roberts’s opinion explicitly preserves the government’s ability to operate traditional public schools that offer an entirely secular education. And Carson does not require states to operate a Maine-style voucher system as an alternative to traditional public education.
“The differences between private schools eligible to receive tuition assistance under Maine’s program and a Maine public school are numerous and important,” Roberts writes. Most notably, private schools that benefit from Maine’s tuition vouchers are largely not required to comply with Maine’s curriculum for public schools. For the most part, private school students do not need to take the same standardized tests offered to Maine public school students. And private school teachers do not need to be certified by the state, as public school teachers are in Maine.
This suggests that a state may provide a public education in which it comprehensively regulates what is taught, how students are assessed, and who is allowed to teach. And the state may offer such a public education to the exclusion of all other education benefits — that is, a state may tell families that if they want a state-funded education, their children must attend a secular public school.
But if a state does subsidize private education that is not comprehensively regulated by the state, then these subsidies must be available to religious schools — even if those schools seek to indoctrinate students into religious beliefs that many residents of the state find abhorrent.