In June, the Supreme Court ruled in Carson v. Makin that the government must treat religious people the same as everyone else when distributing governmental benefits.
The case involved a Maine law that provided tuition assistance for students in rural areas that do not have high schools so the students could attend private schools or public schools in neighboring counties.
However, Maine prohibited the assistance from going to schools that provide religious instruction. Three families who wanted to send their children to religious schools sued Maine claiming the law violated the First Amendment’s Free Exercise Clause by discriminating based on religion. In a 6-3 decision, the Supreme Court agreed.
While the Establishment Clause prevents the direct funding of religious schools, the Court has allowed indirect aid to religious schools through government benefits to parents and children who direct the aid to a school of their choice. This decision is an extension of this principle.
Relying on Trinity Lutheran Church v. Comer (2017) and Espinoza v. Montana (2020), the Court ruled that the government cannot prohibit religious organizations and individuals from participating in an otherwise generally available government programs simply because of their religious nature.
Since the Maine program treats religious schools differently from other private schools, the state is punishing the parents’ free exercise of religion which results in the law being subject to the most exacting level of constitutional scrutiny. Chief Justice John Roberts concluded that while the state does not have to financially support private schools, the state cannot discriminate against religious schools once it decides to fund private education.
The dissenting justices argued that the majority was undermining the separation of church and state by requiring states to fund religious education. Justice Breyer wrote that the Establishment and Free Exercise Clauses create a “constitutional neutrality” where government would not favor religion but allows complete freedom to practice religion in houses of worship and in the home. This neutrality allows states to choose not to fund religious schools to prevent religious-based conflict caused by diverse religious groups competing over scarce governmental resources. Moreover, it prevents people from indirectly subsidizing the teaching of religious beliefs they do not hold.
The immediate significance is that parents who want the option to provide an education in line with their religious beliefs in almost half the states that have school choice programs may choose religious schools.
The general significance is that the state cannot prefer secular groups over faith-based groups in the distribution of governmental benefits which should make it easier for faith-based social service groups to expand its efforts to fight poverty, provide alternatives and support for women experiencing unplanned and unwanted pregnancies, and address other social ills.
However, the true significance may be in what Carson foreshadows about future religious liberty cases.
First, the Court suggests that religious exercise is greater than the right to worship and may include faith-motivated actions in businesses, social services, and the public square.
Second, Carson effectively nullifies Blaine Amendments in 37 states that ban public funds to religious schools. This may suggest that the Court will extend the religion clauses from protecting minority religions (e.g., Amish, Seventh Day Adventists, Muslims) to protecting all religions, which would include Christians. This expansion would be important for Christians facing an increasingly secular, and sometimes hostile, culture.
However, government regulations come with government funding. States can restrict aid to schools that don’t meet certain curricular standards or deny aid to schools that discriminate based on sexual orientation or gender identity. In the latter case, these faith-based institutions would not be exempt from generally applicable anti-discrimination laws, though some hope the Supreme Court will revisit this issue.
Regardless, religious organizations should be wary of becoming reliant on government funds to avoid pressure to conform to secular values to maintain government support and thus lose their witness. B&R