By: Sharon Foster

In December 2021, the Supreme Court heard oral arguments in Carson v. Makin. The Court was asked to decide whether Maine’s secondary school funding program violates the Free Exercise Clause of the First Amendment. The plaintiffs contend that the State’s refusal to provide tuition assistance for sectarian education violates their right to exercise their faith freely.

Like every State in the United States, Maine requires its municipalities to provide free public education to school-aged children. Maine municipalities that are too small to establish a permanent high school meet this obligation in two different ways. The municipality may arrange with a nearby high school or private school to educate these students. Alternatively, if the municipality has not made these arrangements, Maine will provide tuition assistance to attend approved non-sectarian private schools. With support from the Supreme Court’s recent decisions in two cases, parents of Maine high school students, the Carsons, sued for violation of their First Amendment rights. The parents alleged that their deeply held religious beliefs require sending their child to a religious high school. By prohibiting the use of tuition assistance at two religious private schools, the State of Maine inhibits their ability to exercise their religious faith through religious education.

Considering Espinoza v. Montana, the Carsons have a strong argument. In all reality, the Supreme Court likely granted certiorari to overturn the First Circuit’s holding that the Maine law does not violate the plaintiff’s First Amendment rights. In Espinoza, the Supreme Court held that a Montana scholarship program for private schools violated the Free Exercise clause. The Montana law similarly explicitly prohibited use of scholarship funds at religious private schools. The Court reasoned that because the law required parents to choose between accepting a state benefit or exercising their right to practice their religion, the prohibition violated the Free Exercise Clause. Similarly, in Trinity Lutheran v. Comer, the Supreme Court struck down a Missouri grant program that provided funding to resurface playgrounds. The Court also held that prohibiting funding to religiously owned or affiliated school playgrounds violated the Free Exercise Clause. It reasoned that the prohibition required the institution to forgo a generally applicable grant based solely on their religious affiliation. Essentially, in each of these cases, the complaining party would have to choose between maintaining its religious affiliation and obtaining the generally applicable grants.

Maine’s primary argument is that the funding program does not violate the Free Exercise clause because it is not a generally available public benefit, as in Espinoza and Trinity Lutheran. Maine further argued that the restriction is based on the curriculum’s lens rather than the schools’ religious affiliation. These cases highlight the importance of clear distinctions between the Free Exercise Clause and the Establishment Clause. Yet, it seems at every turn, the Supreme Court is set on expanding the Free Exercise Clause past the limits of the Establishment Clause through the alleged “play in the joints.”

While the Court is poised to strike down Maine’s funding law, this is yet another wrongly decided case expanding religious freedom. As an initial matter, the free exercise of religion can clearly be impeded when the Government makes a citizen make a sincere choice between a benefit and religious faith. However, the Establishment Clause creates an explicit prohibition on the use of Government funds for religious purposes. This prohibition is crucial because it creates the possibility that a particular religion will be preferred. Further, such funding has long been viewed as violating separation of church and state. Additionally, one of the primary purposes for including these provisions was James Madison’s desire to abolish the colonial practices of compulsory church attendance and compulsory funding of the church through taxes. With each new requirement for religious funding, the Court creates greater opportunities for discrimination against minority religions. As far as the writer can discern, the only religious schools available in the State of Maine (and probably most states) are Christian. This funding would ultimately preference Christianity over other religions and further entrench Christianity as the dominant religion in the United States. These steps also betray the strict need for neutrality on matters of faith. The simplest way to achieve neutrality is to prohibit the intermixing of church and state altogether. Even when that has the marginal effect of requiring parents to send their children to sectarian schools with state funds, when they would otherwise choose a religious school.

Refusing to provide state funding to religious schools does not interfere with the Free Exercise Clause. The Supreme Court has repeatedly held that refusing to provide a generally applicable benefit to a school based solely on religious affiliation amounts to religious discrimination. However, the purpose of the Establishment Clause is to prohibit the Government from preferencing any religion. The plaintiffs in Carson are not denied a generally applicable benefit because they practice any specific religion. Instead, they are forgoing the benefit because they cannot use it at a school of their choice. Further, while this restriction nominally limits less-affluent parents from sending their children to certain private schools, it does not restrict their ability to do so. Parents can send their children to Christian or religious schools at their will. Moreover, they are free to seek out non-tuition-based private Christian schools or funding from non-government sources. One of the fundamental limits between Free Exercise and the Establishment Clause is that the Government cannot interfere with the practice of religion, but it has no duty to subsidize its practice. The parents in Carson are asking the Supreme Court to require Maine to subsidize their anachronistic religious views, which preference religious education. Such a requirement would significantly undermine the principles of separation of church and state and undermine the purposes of the Establishment Clause.

Sharon (she/her) is currently a 3L at Arizona State University’s Sandra Day O’Connor College of law. Her legal interests focus on issues of race and gender equality. Her personal interests include traveling, cooking, and sharing pictures of her 2 adorable cats.