Today, the Supreme Court will hear arguments in Carson v. Makin, a case that concerns whether Maine may constitutionally exclude religious schools from participating in the state’s private-school tuition-assistance program. To those who have been paying attention to recent Supreme Court decisions in this area, the answer may seem obvious: Such discrimination is unconstitutional. The Supreme Court said as much last year when it held that Montana could not exclude religious schools from participating in its own school-choice program and, before that, in 2017 when it struck down a law that offered aid only to secular nonprofit organizations in Missouri.
In Carson, however, the justices must decide whether Maine’s discrimination against faith-based schools may be sustained on the flimsy distinction between a school that is religious and one that does religious things. In simple terms, the state argues that, while the Constitution would not allow it to deny aid to Catholic schools (or other faith-based schools) simply because they are Catholic, it could allow the state to deny aid to schools that sought to live out their faith during the school day by, say, having Mass or providing religious instruction.
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