Supreme Court Decides Carson ex rel. O.C. v. Makin

On June 21, 2022, the U.S. Supreme Court decided Carson ex rel. O.C. v. Makin, No. 20-1088, holding that the Free Exercise Clause of the First Amendment prohibits a state from imposing a nonsectarian requirement to receive “otherwise generally available tuition assistance payments.”

To bring effect to the Maine constitution’s requirement that its towns provide for and maintain public schools, the legislature requires that school-age children in Maine have a statutory right to the benefit of a free public education. But Maine is a rural state with low population density, so many of Maine’s school administrative units do not operate their own public secondary schools. Maine therefore created a tuition assistance program for families whose own school administrative units do not operate a secondary school or contract with a particular public or private school for the provision of secondary education. By statute, these funds are available to any parent in such circumstances to use to send his or her child to a school accredited by a New England association of schools and colleges or otherwise approved for attendance purposes by the Maine Department of Education. The caveat, however, is that the school of choice must be “nonsectarian.”

Petitioners are two families in Maine who otherwise would qualify for tuition assistance and who chose schools accredited by the requisite New England association, but who were denied the tuition assistance because the schools they chose are not considered nonsectarian. The District Court, on cross-motions for summary judgment on a stipulated record, upheld the “nonsectarian” requirement of Maine’s tuition assistance program. The First Circuit Court of Appeals affirmed.

The Supreme Court began its analysis by recognizing that the Free Exercise Clause of the First Amendment “protects against ‘indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.’” The Court noted that excluding religious observers from otherwise publicly available benefits has repeatedly been found to violate the Free Exercise Clause. The Court focused on two recent decisions: Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___ (2017) and Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020). In Trinity Lutheran, the Court held that a Missouri grant program to provide recycled material for playgrounds violated the Free Exercise Clause when it denied an application from the church for its school. In Espinoza, the Court held that a Montana constitutional provision that prohibited the use of otherwise available scholarship funds at religious schools also violated the Free Exercise Clause. The Court ruled that these precedents “suffice to resolve this case” and that the Maine program is non-neutral and does not withstand strict scrutiny.

The Court rejected the arguments of the First Circuit that the tuition program should nevertheless be upheld because (1) the statutory right is to a “public school education,” which a secular education is not; and (2) the exclusion from the tuition program is not status-based but use-based. As to the first, the Court found two facts critical. First, the other private schools were not simply “replacing” a public education, and the statute did not contemplate that they would be, instead stating that the tuition would be paid “at the public school or the approved private school of the parent’s choice.” Second, Maine had a number of options available to it to extend public education to the secondary schools and had chosen to fund private education instead.

Maine (and the First Circuit) had also sought to draw a “use” and “status” distinction, which was a distinction several justices in recent cases had criticized as artificial. The Court in Makin squarely rejected the distinction, reasoning that “use-based discrimination is [not] any less offensive to the Free Exercise Clause” and held that the distinction here would “raise serious concerns about state entanglement with religion and denominational favoritism.”

Chief Justice Roberts delivered the opinion of the Court, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett joined. Justice Breyer filed a dissent, in which Justice Kagan joined and in which Justice Sotomayor joined in part. Justice Sotomayor filed a dissenting opinion.