Carson v. Makin, 596 U.S. ___ (2022)
Maine offers tuition assistance for parents who live in school districts that neither operate a secondary school nor contract with a school in another district. Parents designate the secondary school they would like their child to attend; the school district sends payments to that school to defray tuition costs. To be eligible for tuition payments, private schools had to be accredited by the New England Association of Schools and Colleges or approved by the Maine Department of Education. Since 1981, Maine has limited tuition assistance payments to “nonsectarian” schools. The First Circuit affirmed the rejection of constitutional challenges to the “nonsectarian” requirement.
The Supreme Court reversed. Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause, which protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” A state need not subsidize private education but if it does so, it cannot disqualify some private schools solely because they are religious. A law that operates in that manner must be subjected to “the strictest scrutiny.” 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; a state’s anti-establishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.
Maine’s “nonsectarian” requirement for otherwise generally available secondary school tuition assistance payments violates the Free Exercise Clause.
SUPREME COURT OF THE UNITED STATES
Syllabus
CARSON, as parent and next friend of O. C., et al. v. MAKIN
certiorari to the united states court of appeals for the first circuit
No. 20–1088. Argued December 8, 2021—Decided June 21, 2022
Maine has enacted a program of tuition assistance for parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district. Under that program, parents designate the secondary school they would like their child to attend, and the school district transmits payments to that school to help defray the costs of tuition. Participating private schools must meet certain requirements to be eligible to receive tuition payments, including either accreditation from the New England Association of Schools and Colleges (NEASC) or approval from the Maine Department of Education. But they may otherwise differ from Maine public schools in various ways. Since 1981, however, Maine has limited tuition assistance payments to “nonsectarian” schools.
Petitioners sought tuition assistance to send their children to Bangor Christian Schools (BCS) and Temple Academy. Although both BCS and Temple Academy are accredited by NEASC, the schools do not qualify as “nonsectarian” and are thus ineligible to receive tuition payments under Maine’s tuition assistance program. Petitioners sued the commissioner of the Maine Department of Education, alleging that the “nonsectarian” requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. The District Court rejected petitioners’ constitutional claims and granted judgment to the commissioner. The First Circuit affirmed.
Held: Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause. Pp. 6–18.
(a) The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 450. The Court recently applied this principle in the context of two state efforts to withhold otherwise available public benefits from religious organizations. In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___, the Court considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces, but denied such grants to any applicant that was owned or controlled by a church, sect, or other religious entity. The Court held that 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.” 582 U. S., at ___–___. And in Espinoza v. Montana Department of Revenue, 591 U. S. ___, the Court held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination” violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at religious schools. 591 U. S., at ___. “A State need not subsidize private education,” the Court concluded, “[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Id., at ___. Pp. 6–8.
(b) The principles applied in Trinity Lutheran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. 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 in this case are disqualified from this generally available benefit “solely because of their religious character.” 582 U. S., at ___. Likewise, in Espinoza, as here, the Court considered a state benefit program that provided public funds to support tuition payments at private schools and specifically carved out private religious schools from those eligible to receive such funds. Both that program and this one disqualify certain private schools from public funding “solely because they are religious.” 591 U. S., at ___. A law that operates in that manner must be subjected to “the strictest scrutiny.” Id., at ___–___.
Maine’s program cannot survive strict scrutiny. 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. See Zelman v. Simmons-Harris, 536 U.S. 639, 652–653. Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires. But a State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise. Pp. 9–11.
(c) The First Circuit’s attempts to recharacterize the nature of Maine’s tuition assistance program do not suffice to distinguish this case from Trinity Lutheran or Espinoza. Pp. 11–18.
(1) The First Circuit held that the “nonsectarian” requirement was constitutional because the benefit was properly viewed not as tuition payments to be used at approved private schools but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.” 979 F.3d 21, 44. But the statute does not say anything like that. The benefit provided by statute is tuition at a public or private school, selected by the parent, with no suggestion that the “private school” must somehow provide a “public” education. Moreover, the differences between private schools eligible to receive tuition assistance under Maine’s program and a Maine public school are numerous and important. To start with, private schools do not have to accept all students, while public schools generally do. In addition, the free public education that Maine insists it is providing through the tuition assistance program is often not free, as some participating private schools charge several times the maximum benefit that Maine is willing to provide. And the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools.
The key manner in which participating private schools are required to resemble Maine public schools, however, is that they must be secular. Maine may provide a strictly secular education in its public schools. But BCS and Temple Academy—like numerous other recipients of Maine tuition assistance payments—are not public schools. Maine has chosen to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise. Pp. 11–15.
(2) The Court of Appeals also attempted to distinguish this case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were “solely status-based religious discrimination,” while the challenged provision here “imposes a use-based restriction.” 979 F. 3d, at 35, 37–38. Trinity Lutheran and Espinoza held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why. “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Our Lady of Guadalupe School v. Morrissey-Berru, 591 U. S. ___, ___. In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.
Locke v. Davey, 540 U.S. 712, does not assist Maine here. The scholarship funds at issue in Locke were intended to be used “to prepare for the ministry.” Trinity Lutheran, 582 U. S., at ___. Locke’s reasoning expressly turned on what it identified as the “historic and substantial state interest” against using “taxpayer funds to support church leaders.” 540 U. S., at 722, 725. But “it is clear that there is no ‘historic and substantial’ tradition against aiding [private religious] schools” that is “comparable.” Espinoza, 591 U. S., at ___. Locke cannot be read to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits. Pp. 15–18.
979 F.3d 21, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Breyer, J., filed a dissenting opinion, in which Kagan J., joined, and in which Sotomayor, J., joined as to all but Part I–B. Sotomayor, J., filed a dissenting opinion.
Judgment REVERSED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined, and in which Sotomayor, J., joined as to all but Part I–B. Sotomayor, J., filed a dissenting opinion. |
Letter from the Commonwealth of Virginia to the Court notifying the Court of the Commonwealth’s change in position of Virginia submitted. |
Letter from the Commonwealth of Virginia to the Court notifying the Court of the Commonwealth’s change in position of Virginia not accepted for filing. (February 03, 2022) |
Letter from the Commonwealth of Virginia to the Court notifying the Court of the Commonwealth’s change in position of Virginia submitted. |
Letter from the Commonwealth of Virginia to the Court notifying the Court of the Commonwealth’s change in position filed (Revised letter of 2/18/2022). (Distributed) |
Letter from the Commonwealth of Virginia to the Court notifying the Court of the Commonwealth’s change in position filed. (Revised letter of 2/18/2022) (Distributed) |
Argued. For petitioners: Michael Bindas, Seattle, Wash. For respondent: Christopher C. Taub, Chief Deputy Attorney General, Augusta, Me.; and Malcolm L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) |
Reply of David Carson, et al. submitted. |
Reply of petitioners David Carson, et al. filed. (Distributed) |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument GRANTED. |
Amicus brief of United States submitted. |
Amicus brief of Education and Constitutional Law Professors submitted. |
Motion of United States for leave to participate in oral argument and for divided argument submitted. |
Amicus brief of National School Boards Association et al. submitted. |
CIRCULATED |
Brief amici curiae of National School Boards Association et al. filed. (Distributed) |
Amicus brief of American Atheists, Inc. submitted. |
Amicus brief of Public Funds Public Schools submitted. |
Amicus brief of Maine School Management Association, Maine School Superintendents Association, Maine School Board Assocation submitted. |
Amicus brief of Religious and Civil-Rights Organizations (Americans United for Separation of Church and State, et al.) submitted. |
Amicus brief of Virginia, California, Delaware, Massachusetts, Minnesota, New Mexico, New York, Oregon, Washington, and the District of Columbia submitted. |
Amicus brief of Advancement Project, Journey for Justice Alliance, Alliance for Educational Justice, Gsa Network submitted. |
Amicus brief of Commonwealth of Virginia submitted. |
Amicus brief of National Education Association, et al. submitted. |
Brief amicus curiae of Public Funds Public Schools filed. |
Brief amici curiae of National Education Association, et al. filed. (Distributed) |
Brief amici curiae of Maine School Management Association, et al. filed. (Distributed) |
Brief amici curiae of National School Boards Association, et al. filed. (Distributed) |
Brief amici curiae of Education and Constitutional Law Scholars filed. (Distributed) |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument filed. |
Brief amici curiae of Religious and Civil-Rights Organizations, et al. filed. (Distributed) |
Brief amici curiae of Religious and Civil-Rights Organizations, et al.) filed. (Distributed) |
Brief amici curiae of Advancement Project, et al. filed. (Distributed) |
Brief amici curiae of Education and Constitutional Law Professors filed. (Distributed) |
Brief amici curiae of Virginia, California, Delaware, Massachusetts, Minnesota, New Mexico, New York, Oregon, Washington, and the District of Columbia filed. (Distributed) |
Brief amicus curiae of United States filed. (Distributed) |
Amicus brief of The Freedom From Religion Foundation and Center for Inquiry submitted. |
Brief amicus curiae of American Atheists, Inc. filed. (Distributed) |
Brief amici curiae of The Freedom From Religion Foundation and Center for Inquiry filed. (Distributed) |
Amicus brief of State of Vermont submitted. |
Brief amicus curiae of State of Vermont filed. (Distributed) |
Brief of respondent A. Pender Makin filed. |
Brief of A. Pender Makin submitted. |
The record from the U.S.D.C. District Court of Main is electronic and located on Pacer. |
The record from the U.S.D.C. District Court of Maine is electronic and located on Pacer. |
The record from the U.S.C.A. 1st Circuit is electronic and located on Pacer also received is one envelope with the Joint Appendix. |
Record requested from the U.S.C.A. 1st Circuit. |
SET FOR ARGUMENT on Wednesday, December 8, 2021. |
Amicus brief of The Buckeye Institute submitted. |
Amicus brief of Georgia Goal Scholarship Program, Inc. submitted. |
Amicus brief of EdChoice submitted. |
Amicus brief of Protect the First Foundation submitted. |
Amicus brief of Professor Ashley R. Berner submitted. |
Amicus brief of Freedom X submitted. |
Amicus brief of The Southern Christian Leadership Conference - Memphis Chapter, Rev. Vernon Horner, Deborah L. Womack, Deacon George Womack, and Rev. Steven Joiner submitted. |
Amicus brief of Christian Legal Society submitted. |
Brief amicus curiae of Professor Charles L. Glenn filed. |
Brief amicus curiae of Members of the United States Senate filed. |
Brief amicus curiae of Jewish Coalition of Religious Liberty filed. |
Brief amicus curiae of The Becket Fund for Religious Liberty filed. |
Amicus brief of The States of Arkansas, Alabama, Arizona, Georgia, Florida, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, and West Virginia submitted. |
Amicus brief of Independent Women's Law Center and Independent Women's Forum submitted. |
Amicus brief of Partnership for Inner-City Education, Council of Islamic Schools in North America, and National Council of Young Israel submitted. |
Amicus brief of Hillsdale College submitted. |
Amicus brief of Advancing American Freedom submitted. |
Amicus brief of Jewish Coalition of Religious Liberty submitted. |
Amicus brief of National Jewish Commission on Law and Public Affairs (COLPA) submitted. |
Amicus brief of The Becket Fund for Religious Liberty submitted. |
Amicus brief of Professor Charles L. Glenn submitted. |
Brief amicus curiae of The Buckeye Institute filed. |
Amicus brief of Defense of Freedom Institute for Policy Studies, Inc. submitted. |
Amicus brief of The Stanley M. Herzog Charitable Foundation submitted. |
Amicus brief of Pioneer Institute submitted. |
Amicus brief of Members of the United States Senate submitted. |
Amicus brief of Innovative Schools submitted. |
Amicus brief of The Church of Jesus Christ of Latter-day Saints, et al. submitted. |
Amicus brief of Union of Orthodox Jewish Congregations of America submitted. |
Amicus brief of The Cato Institute submitted. |
Amicus brief of Center for Constitutional Jurisprudence submitted. |
Amicus brief of Concerned Women for America, et al. submitted. |
Brief amicus curiae of Professor Ashley R. Berner filed. |
Brief amici curiae of EdChoice, et al. filed. |
Brief amicus curiae of Defense of Freedom Institute for Policy Studies, Inc. filed. |
Brief amicus curiae of Hillsdale College filed. |
Brief amici curiae of The States of Arkansas, Alabama, Arizona, Georgia, Florida, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, and West Virginia filed. |
Brief amici curiae of The Southern Christian Leadership Conference - Memphis Chapter, Rev. Vernon Horner, Deborah L. Womack, Deacon George Womack, and Rev. Steven Joiner filed. |
Brief amici curiae of The Church of Jesus Christ of Latter-day Saints, et al. filed. |
Brief amici curiae of EdChoice and Maine Policy Institute filed. |
Brief amici curiae of National Jewish Commission on Law and Public Affairs (COLPA), et al. filed. |
Brief amicus curiae of The Cato Institute filed. |
Brief amici curiae of The Southern Christian Leadership Conference - Memphis Chapter, et al. filed. |
Brief amici curiae of Partnership for Inner-City Education, et al. filed. |
Brief amici curiae of Arkansas, et al. |
Brief amicus curiae of Georgia Goal Scholarship Program, Inc. filed. |
Brief amicus curiae of The Stanley M. Herzog Charitable Foundation filed. |
Amicus brief of Georgia Goal Scholarship Program, Inc. submitted. |
Brief amici curiae of Innovative Schools filed. |
Brief amicus curiae of Freedom X filed. |
Brief amicus curiae of Union of Orthodox Jewish Congregations of America filed. |
Brief amicus curiae of Protect the First Foundation filed. |
Brief amicus curiae of Advancing American Freedom filed. |
Brief amici curiae of Christian Legal Society, et al., filed. |
Brief amici curiae of Partnership for Inner-City Education, Council of Islamic Schools in North America, and National Council of Young Israel filed. |
Brief amici curiae of Concerned Women for America, et al. filed. |
Brief amicus curiae of Independent Women's Law Center and Independent Women's Forum filed. |
Brief amicus curiae of Pioneer Institute filed. |
Brief amicus curiae of Claremont Institute's Center for Constitutional Jurisprudence filed. |
Amicus brief of Foundation for Moral Law submitted. |
Brief amicus curiae of Foundation for Moral Law filed. |
Amicus brief of Liberty Justice Center submitted. |
Amicus brief of Foundation for Moral Law submitted. |
Amicus brief of Foundation for Moral Law submitted. |
Amicus brief of Americans for Prosperity Foundation; Yes. Every Kid. submitted. |
Brief amici curiae of Liberty Justice Center, et al. filed. |
Brief amici curiae of Americans for Prosperity Foundation; Yes. Every Kid. filed. |
Brief amicus curiae of Foundation for Moral Law filed. |
Brief amici curiae of Americans for Prosperity Foundation, et al. filed. |
Brief amicus curiae of Professor Michael W. McConnell filed. |
Amicus brief of American Center for Law and Justice submitted. |
Brief amicus curiae of American Center for Law and Justice filed. |
Amicus brief of Professor Michael W. McConnell submitted. |
Brief amici curiae of World Faith Foundation and Institute for Faith and Family in Support filed. |
Brief amici curiae of World Faith Foundation, et al. filed. |
Amicus brief of World Faith Foundation and Institute for Faith and Family in Support submitted. |
Joint Appendix submitted. |
Brief of David Carson, et al. submitted. |
Brief of petitioners David Carson, et al. filed. |
Joint appendix filed. (Statement of costs filed) |
Blanket Consent filed by Respondent, A. Pender Makin |
Consent to the filing of amicus briefs received from counsel for A. Pender Makin submitted. |
Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including September 3, 2021. The time to file respondent's brief on the merits is extended to and including October 22, 2021. |
Consent to the filing of amicus briefs received from counsel for David Carson, et al. submitted. |
Motion of David Carson, et al. for an extension of time submitted. |
Blanket Consent filed by Petitioner, David Carson, et al. |
Motion for an extension of time to file the briefs on the merits filed. |
Petition GRANTED. |
DISTRIBUTED for Conference of 7/1/2021. |
DISTRIBUTED for Conference of 6/24/2021. |
Supplemental brief of petitioners David Carson, et al. filed. (Distributed) |
Reply of petitioners David Carson, et al. filed. |
Brief of respondent A. Pender Makin in opposition filed. |
Brief amicus curiae of American Center for Law and Justice filed. |
Motion to extend the time to file a response is granted and the time is extended to and including May 21, 2021. |
Motion to extend the time to file a response from April 21, 2021 to May 21, 2021, submitted to The Clerk. |
Response Requested. (Due April 21, 2021) |
DISTRIBUTED for Conference of 4/1/2021. |
Brief amici curiae of Innovative Schools filed. |
Brief amici curiae of Council of Islamic Schools in North America, Partnership for Inner-City Education, and Union of Orthodox Jewish Congregations of America filed. |
Brief amici curiae of National Legal Foundation, et al. filed. |
Brief amicus curiae of Jewish Coalition of Religious Liberty filed. |
Brief amici curiae of Christian Legal Society filed. |
Brief amicus curiae of EdChoice filed. |
Brief amicus curiae of Foundation for Moral Law filed. (Distributed) |
Brief amici curiae of States of Arkansas, et al. filed. |
Brief amici curiae of Liberty Justice Center,et al. filed. |
Brief amici curiae of Americans for Prosperity Foundation and yes. every kid. filed. |
Waiver of right of respondent A. Pender Makin to respond filed. |
Blanket Consent filed by Petitioner, David Carson, et al. |
Petition for a writ of certiorari filed. (Response due March 11, 2021) |