Today the Supreme Court handed down a significant victory for religious liberty in Carson v. Makin. At issue was a program enacted by Maine to provide tuition assistance to parents who live in school districts that do not operate their own secondary school, but only permitting such support to go to private schools the parents designate if they are “nonsectarian.” By a margin of 6–3, the Court struck down that prohibition as a violation of the Free Exercise Clause. Families may not be barred from participating in an otherwise generally available student-aid program simply because they choose to use their aid for religious schools.
Today’s holding is a clear application of Espinoza v. Montana Department of Revenue (2020), where the Court held that Montana could not prohibit, under the guise of its Blaine Amendment, a program providing a tax credit for contributions to a scholarship program simply because it gave parents the choice of applying it to religious schools. Unlike Montana, Maine does not technically have a Blaine Amendment—which is ironic given that the namesake of those no-aid provisions, James G. Blaine, hailed from Maine—but this case, like Espinoza, strikes a blow against the Blaine Amendments that remain in most states.
The Court should be applauded for reaching the same conclusion as it did in Espinoza, but the legal question involved in this case is so nearly identical to that of Espinoza that it may raise eyebrows that Carson was not decided unanimously. As Chief Justice John Roberts wrote in his opinion for the Court, “were we to accept Maine’s argument, our decision in Espinoza would be rendered essentially meaningless.”
For that matter, Espinoza built on Trinity Lutheran Church of Columbia v. Comer (2017), which held that a state could not exclude churches from an otherwise neutral and secular aid program—in that case, a playground-resurfacing grant program that excluded church-controlled entities. As in Espinoza, Roberts explained, a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
What is remarkable about this case is the fact that Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan were unwilling to follow Trinity Lutheran and Espinoza here. Rather than abide by those precedents, they went along with Maine’s attempt to concoct a loophole by reframing secular education as rendering sectarian schools non-equivalent. (We saw a very similar dynamic play out with red-herring dissents in the eviction moratorium case last year and the religious liberty cases during COVID.) Roberts exposed this sleight of hand:
Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools. But “the definition of a particular program can always be manipulated to subsume the challenged condition,” and to allow States to “recast a condition on funding” in this manner would be to see “the First Amendment . . . reduced to a simple semantic exercise.” [citations omitted]
Roberts also quoted Justice John M. Harlan’s statement concurring in a 1970 decision that upheld property tax exemptions for churches: “The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.”
Embedded in the contrary argument is the notion, advanced in Justice Breyer’s dissent, that prior cases turned on the religious status of the schools involved, not the use of public funds. Justice Neil Gorsuch, joined by Justice Clarence Thomas, had previously argued against the status-use distinction in a concurring opinion in Trinity Lutheran. Today, Roberts’ opinion for the Court flatly rejected the notion “that use-based discrimination is any less offensive to the Free Exercise Clause” than status-based discrimination, and it quoted yet another 2020 religious freedom precedent, Our Lady of Guadalupe School v. Morrissey-Berru, to explain 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.”
The dissent by Justice Breyer for the Court’s liberal bloc argued that Maine’s program reflects “government neutrality” sought by the Establishment Clause, but Roberts countered, “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.” Additionally, Roberts explained, “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.”
Besides joining most of Breyer’s dissent, Justice Sotomayor penned a dissent of her own that was not masked by any pretense of adherence to Trinity Lutheran or Espinoza. “What a difference five years makes,” she lamented, reiterating her 2017 dissent.
Notably, the First Circuit judgment that the Court reversed today was joined by retired Justice David Souter sitting on the panel by designation. It would seem that liberal justices do not feel bound by Supreme Court precedent even after they leave the Court.
Keep this in mind when the Court’s much anticipated decision in Dobbs v. Jackson Women’s Health Organization is finally handed down. Once the context shifts to abortion, we are going to hear a lot about stare decisis from the dissenters, not to mention members of the Biden administration, whose solicitor general’s office switched sides in the First Circuit after the prior administration had sided with the plaintiffs. Their philosophy is more accurately stated as “stare decisis for me but not for thee.”
Carson v. Makin adds to the Court’s impressive victory streak in merits cases spanning more than a decade for religious freedom and expression. But there remain several justices who would not only end the streak, but undo it, precedent notwithstanding.