Carson v. Makin: A Business Trilogy Protecting Religious Liberty | Columnists

Dr. John A. Sparks

In 2017, the Supreme Court ruled on a case involving a schoolyard resurfacing program provided by the state of Missouri. Trinity Lutheran School applied for a state grant, which was usually offered to other schools, but Trinity was denied funding solely because it was a religious school. The Supreme Court ruled in favor of the school, saying it had every right under the free exercise clause of the First Amendment to participate in a government benefit program without renouncing its religious affiliation.

In 2020, the High Court continued its efforts to restore the free exercise clause to the force intended by the American founders. The case was Espinoza v. Montana. Montana gave tax credits to donors who created scholarships for private schools, but the state refused to allow parents who received scholarships to spend them on religious school tuition. The Supreme Court ruled against Montana, saying that requiring a school “separate itself from any religious control or affiliation” in order to obtain the scholarships “deters or discourages the exercise of rights of the First Amendment”.

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Now the new decision in Carson v. Makin, the third case in this trilogy of cases, again finds that a state-instituted program (this time in Maine) that “works to identify and exclude otherwise eligible schools on the basis of their religious exercise” violates the free exercise clause of the First Amendment.

Here are the details: The state of Maine is the most rural state in the union. In some school districts, this has resulted in too few students to financially justify the existence of a public high school. Therefore, Maine authorized these districts to provide a “tuition assistance” program to families in these localities. One of the options open to parents was to choose a private school to which public tuition would be sent. The Carson family and another family chose religious schools to send their children to (Bangor Christian Schools and Temple Academy) because they lived in districts where there were no public high schools and wanted religious instruction as part of the education of their children.

Prior to 1981, choosing a religiously affiliated school would have been no problem, but that year the state attorney general ruled that the practice could not continue as it amounted to “an establishment of religion.” . The Maine Legislature responded by requiring that tuition assistance payments, from then on, only go to “non-sectarian” schools, i.e. those with no religious affiliation. . The Carsons sued and the case, after making its way through the lower courts, ended up in the United States Supreme Court.

In a 6-3 decision, the High Court sided with the families and against the State of Maine. The court first considered Maine’s claim that if tuition were to be paid in religious schools, it would amount to an “establishment of religion.” The court pointed out that in a case decided in 2002, which involved a Cleveland, Ohio voucher program, it had previously ruled that a benefit program under which private citizens “direct government assistance to religious schools entirely because of their own independence and private choice does not breach the Establishment Clause. The court once again recognized that indirect aid to religious schools, selected by parents, was clearly not equivalent to ” an establishment of religion,” by which the founders meant a tax-funded, state-mandated church.

The majority opinion, written by Chief Justice John Roberts, went on to identify the court’s cardinal principle that “a state violates the free exercise clause when it excludes religious observers from public benefits otherwise available.” Drawing on the Trinity Playground and Montana scholarship cases, Roberts says that while a state doesn’t need to subsidize private education, if it does, it can’t disqualify some schools have these benefits because they are religious.

Roberts’ opinion also challenges Judge Breyer’s assertion that the court’s decision in favor of the families and against Maine violates “governmental neutrality” on religious matters. As Roberts points out, “There is nothing neutral about Maine’s program. The state pays tuition for some students in private schools, as long as the schools are not religious. This is discrimination against religion.

Maine’s proprietary statutory language, which prohibited state aid to religious schools, is reminiscent of the “Blaine Amendments” named after Congressman James G. Blaine. At its height, more than 30 states prevented public support for “cult” schools. Originally, these provisions targeted Catholic schools, but more recently they have targeted any religious school. Roberts’ opinion effectively puts the last “nail in the coffin” of these types of provisions. States cannot disqualify private denominational schools as recipients of these public education funds.

These three cases, because they broaden the spectrum of parental educational choices, are particularly important. Unfortunately, many public schools and their boards have allowed their schools to drift into teaching that parents find increasingly contrary to their beliefs and values. This decision recognizes that parents desire and must have real educational alternatives.

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