The NCSL Blog


By the State and Local Legal Center

In Carson v. Makin the U.S. Supreme Court held 6-3 that Maine’s refusal to provide tuition assistance payments to “sectarian” schools (schools that teach religion) violates the First Amendment’s Free Exercise Clause.

US Supreme CourtMaine’s constitution and statutes require that students receive a free public education. Fewer than half of Maine’s school administrative units (SAUs) operate their own public secondary schools. If those SAUs don’t contract with a particular public or private school, they must “pay the tuition . . . at the public school or the approved private school of the parent’s choice.” To be approved a private school must be “nonsectarian.”

Two sets of Maine parents argued that the religious schools where they send or want to send their children can’t be disqualified from receiving state tuition payments because they are religious.

In an opinion written by Chief Justice John Roberts the U.S. Supreme Court agreed. The Court began its analysis by noting that “we have repeatedly held that a state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” The court then concluded that the “unremarkable” principles applied in two recent U.S. Supreme Court cases “suffice to resolve this case.”

In Trinity Lutheran Church of Columbia v. Comer (2017) the lower court held Trinity Lutheran Church’s preschool wasn’t allowed to receive a state playground resurfacing grant because it was operated by a church. The Supreme Court reversed holding the Free Exercise Clause did not permit Missouri to “expressly discriminate[] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”

In Espinoza v. Montana Department of Revenue (2020) the Montana Supreme Court held that to the extent a Montana program providing tax credits to donors who sponsored private school tuition scholarships included religious schools, it violated a provision of the Montana Constitution which barred government aid to religious schools. The U.S. Supreme Court reversed stating: “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

The U.S. Supreme Court opined that the facts of this case are very similar to those in Trinity Lutheran and Espinoza: “Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, [the religious schools at issue in this case] are disqualified from this generally available benefit “solely because of their religious character.”

The U.S. Supreme Court concluded Maine’s exclusion of religious schools doesn’t comply with strict scrutiny because “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”

Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor dissented. Breyer began his analysis writing: “The First Amendment begins by forbidding the government from ‘mak[ing] [any] law respecting an establishment of religion.’ It next forbids them to make any law ‘prohibiting the free exercise thereof.’ The court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.”

Breyer noted that in Zelman v. Simmons-Harris (2002) the U.S. Supreme Court held “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” But, “[w]e have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.”

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.