This morning the U.S. Supreme Court heard oral arguments in Carson v. Makin. Based on the justices’ questions and comments, it is hard to see how the decision turns out to be anything other than another win for advocates of religious liberty and school choice.
At issue is Maine’s 150-year-old program — often called “town tuitioning” — that allows small school districts without high schools to provide funds to resident families so they can pay for a secondary education in another district or at a private school. The debate is over the state’s policy that prohibit religious schools from participating.
Forty years ago, Maine adopted that exclusion (after a century of allowing students to take these funds to faith-based schools) because of an opinion written by the state’s attorney general. In that era, the U.S. Supreme Court had interpreted the First Amendment to require the government to avoid entanglements with — including funding for — religious schools.
But over the last 20 years in particular, the Court has changed direction. In the famous 2002 case, Zelman v. Simmons-Harris, the Court ruled that school-voucher programs were constitutional so long as state dollars didn’t directly fund religious schools. If funds went to parents, and parents voluntarily chose religious schools, the state was not supporting religion. In two more recent cases, (Trinity Lutheran and Espinoza), the Court ruled that it was unconstitutional for a state to provide a widely available public benefit but single out faith-based entities for exclusion. To do so would amount to discrimination against religion.
Prior to today’s argument, it appeared that Maine’s best chance at having its program sustained was the “status–use distinction.” In a 2004 case, Locke v. Davey, the Court allowed Washington to prevent the recipient of a state scholarship from using those dollars for training to be a minister. The key difference was that no religious school was prevented from participating in the scholarship program; the state instead had decided that public funds could not support an academic program designed to prepare a student for a religious career. In other words, a state cannot exclude an institution based on its religious status, but it can stop public dollars from being used for this religious purpose.
But from the start of today’s hearing it was clear that the state was not going to hang its hat on Locke — and it soon became equally clear that a majority of the Court would not have been receptive had the state done so. Instead, Maine argued first that this tuitioning program was not a private-school-choice program but an extension of its provision of public education. And since, in the state’s view, a fundamental characteristic of public education is its secular nature, the state has the right to exclude religious schools from participating. Second, Maine argued that a state has the right to craft discretionary spending programs to align with the state’s beliefs. Since Maine wants to remain religiously neutral for a variety of reasons, it should be able to write education policies accordingly.
The three progressive justices were most sympathetic to Maine’s case. For instance, Justice Breyer, who dissented in the Zelman school-voucher case, noted that America has dozens of religions and that it is reasonable for a state, in an effort to avoid fostering strife, not to fund religious schools. Breyer argued that a purpose of the First Amendment’s religious clauses is to prevent religious war. (Others, however, including former Chief Justice William Rehnquist, former Justice Sandra Day O’Connor, and University of Notre Dame law professor Rick Garnett have written about the risks of using the potential for religious strife when interpreting the Constitution.)
But the overall tenor of the hearing was that Maine’s exclusion of religious schools runs afoul of Zelman, Trinity Lutheran, and Espinoza. To allow religious schools to participate would not be equivalent to funding religion since tuition funds are provided to families, and families — not the state — decide which schools to choose. And for the state to allow families to choose from among an array of private schools except religious schools disadvantages faith in a way inconsistent with the free-exercise clause.
Maine’s attorney attempted to show that the state wasn’t simply hostile to faith by arguing that it would prohibit the participation of nonreligious private schools that behaved in ways inconsistent with the state’s conception of public education, such as white-supremacist schools. Similarly, private schools that taught that all religions were wrong could also be excluded since they were not religiously neutral. Justice Barrett, however, noted that the policy under consideration doesn’t say “religiously neutral”; it says “sectarian.” Maine’s policy is aimed at religious schools.
By the end of the oral arguments, Chief Justice Roberts and Justices Alito, Kavanaugh, and Gorsuch appeared convinced that the type of line drawing done by state officials to distinguish different types of private schools would unconstitutionally discriminate against all faith-based schools or a subset of them. For instance, Maine’s attorney had difficulty explaining whether a Unitarian Universalist school would be approved or whether a faith-informed approach to teaching about the Crusades would be enough to cause a school to be excluded. Justices Thomas and Barrett also asked questions that indicated their skepticism of Maine’s case. Even Justice Breyer explicitly noted that this case was much like Zelman. Given his repeated admonitions to respect precedent during the Dobbs abortion case last week, one has to wonder how he will vote here, especially if Roberts assigns himself the opinion and crafts it narrowly.
Both Zelman and Espinoza were 5–4 decisions — and both were handed down when the Court didn’t have today’s six-justice conservative bloc. Chief Justice Roberts found a way to craft a narrow opinion in Trinity Lutheran that garnered seven votes. After today’s oral arguments, it is easier to see a somewhat modest Roberts-penned opinion (striking down Maine’s policy but protecting the ability of states to not fund seminaries and other religious-vocation programs) that gets six, seven, or eight votes than a decision that upholds Maine’s program.