Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 21, 2022 (Part I); and cases granted review on that date (Part II).
Opinion: Carson v. Makin, 20-1088
Carson v. Makin, 20-1088. By a 6-3 vote, the Court held that “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause.” Many school administrative units (SAUs) in the largely rural state do not have public secondary schools. As a result, the state established a tuition assistance program that allows parents in SAUs that neither operate nor contract with a secondary school to designate the secondary school of their choice ”public or private—and the school district transmits payments to that school to help defray the costs of tuition.” In 1981, the state attorney general took the position that public funding of private religious schools violated the Establishment Clause, so “Maine imposed a new requirement that any school receiving tuition assistance payments must be ‘a nonsectarian school,’” meaning it is not associated with a particular faith or religion and does not promote a faith or belief system in its teachings or present materials “through the lens of this faith.” Petitioners are families who live in SAUs without secondary schools who wished to receive tuition assistance to send their children to sectarian schools but could not obtain that assistance under Maine law. They filed suit for declaratory and injunctive relief, alleging that the “nonsectarian” requirement violated the Free Exercise and Establishment Clauses, as well as the Equal Protection Clause. The district court rejected their claim twice (once after a remand), and the First Circuit affirmed. In Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020), the Court ruled that Montana “violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at the religious schools of their choosing.” The First Circuit distinguished Espinoza as a case about discrimination based on the religious identity or status of the schools whereas Maine’s restriction is about discrimination “’based on the religious use’” of state benefits. In an opinion by Chief Justice Roberts, the Court reversed and remanded.
The Court reminded that it has “repeatedly held that a State violates the Free exercise Clause when it excludes religious observers from otherwise available public benefits.” And it found that two cases governed this case: Espinoza and Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017). Trinity Lutheran involved Missouri’s denial of grant funding to a church that wanted to resurface its playground. The Court there held “that the Free Exercise Clause did not permit Missouri to ‘expressly discriminate against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.’” Espinoza addressed the denial of tax credits to donors who sponsored private school tuition scholarships to the extent they included private religious schools. Applying strict scrutiny, the Court concluded the program violated the First Amendment because it restricted a public benefit solely because of the schools’ “religious character”: “’A State need not subsidize private education,’ we concluded, ‘[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’” A law that does so is subject to strict scrutiny, and “an interest in separating church and state more fiercely than the Federal Constitution . . . cannot qualify as compelling in the face of the infringement of free exercise.” (Cleaned up.)
Relying on those principles, the Court analyzed Maine’s program using strict scrutiny because it disqualified the schools from this generally available benefit “’solely because of their religious character.’” The Court concluded that Maine’s tuition assistance program—like the program in Trinity Lutheran—“’effectively penalizes the free exercise’ of religion.” The Court noted that Maine excluded religious schools from the tuition assistance program even after the decision in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), which held “that a benefit program under which private citizens ‘direct government aid to religious schools wholly as a result of their own genuine and independent private choice’ does not offend the Establishment Clause.” In the Court’s view, “Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires.” In response to objections from Maine and the dissent about “the importance of ‘government neutrality’ when it comes to religious matters,” the Court maintained “there is nothing neutral about Maine’s program” given that it discriminates against religion by paying for schools so long as they are not religious.
Next, the Court examined the First Circuit’s efforts to distinguish Maine’s case from Trinity Lutheran and Espinoza. It viewed the court of appeals as erroneously characterizing the public benefit at issue as the offering of a free public education. Instead, the Court determined that “[t]he benefit is tuition at a public or private school, selected by the parent, with no suggestion that the ‘private school’ must somehow provide a ‘public’ education.” To accept Maine’s logic, according to the Court, reduces the First Amendment “’to a simple semantic exercise,’” when instead it should “turn on the substance of free exercise protections, not on the presence or absence of magic words.” The Court concluded that because Maine chose not to operate schools of its own and to subsidize private education, it could not “’disqualify some private schools solely because they are religious.’”
The Court also rejected the First Circuit’s “attempt to distinguish this case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were ‘solely status-based religious discrimination,’ while the challenged provision here ‘imposes a use-based restriction.’” According to the Court, “those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.” The Court rejected Maine’s reliance on Locke v. Davey, 540 U.S. 712 (2004), which upheld a restriction on state scholarship funds used for “pursuing a degree designed to ‘train a minister to lead a congregation.’” The Court concluded that Locke‘s focus was narrow and turned on the “‘historic and substantial state interest’ against using ‘taxpayer funds to support church leaders.’”
Justice Breyer dissented, joined by Justice Kagan in full and Justice Sotomayor in part. He discussed the “frequent tension” between the Free Exercise and Establishment Clauses and the “’conflicting pressures’” they impose on government action. The Free Exercise Clause requires protecting religious observers from unequal treatment while the Establishment Clause “’commands a separation of church and state.’” Yet the Religion Clauses “’express complementary values’” and “attempt to chart a ‘course of constitutional neutrality’ with respect to government and religion.” The “’benevolent neutrality’” they create, Justice Breyer said, gives states “a degree of freedom to navigate” these “competing prohibitions,” such as choosing not to fund religious activities where there are “strong, establishment-related reasons for not doing so.”
Justice Breyer further discussed “the increased risk of religiously based social conflict when government promotes religion in its public school system.” This potential for “religious strife” exists because of this nation’s “great religious diversity,” with “a vast array of beliefs, ideals, and philosophies.” A “’rigid, bright-line’ approach to the Religion Clauses, therefore, will not work “without any leeway or ‘play in the joints’” and “will too often work against the Clauses’ underlying purposes.’” In Justice Breyer’s view, it is best to “consider the particular benefit at issue, along with the reasons for the particular religious restriction at issue.” Justice Breyer also disagreed with the majority that Espinoza and Trinity Lutheran govern, and agreed instead with the First Circuit’s distinction based on religious-use versus religious-status. He said: “State funding of religious activity risks the very social conflict based upon religion that the Religion Clauses were designed to prevent. And, unlike the circumstances present in Trinity Lutheran and Espinoza, it is religious activity, not religious labels, that lies at the heart of this case.” Justice Breyer further stated that “Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children the religiously neutral education required in public school systems. And that, in significant part, reflects the State’s antiestablishment interests in avoiding spending public money to support what is essentially religious activity. The Religion Clauses give Maine the ability, and flexibility, to make this choice.”
Justice Sotomayor wrote “separately to add three points.” First, she claimed Trinity Lutheran started to “dismantle the wall of separation between church and state that the Framers fought to build.” “After assuming away an Establishment Clause violation, the Court revolutionized Free Exercise doctrine by equating a State’s decision not to fund a religious organization with presumptively unconstitutional discrimination on the basis of religious status.” Second, Justice Sotomayor spoke of “the consequences of the Court’s rapid transformation of the Religion Clauses.” Doctrinally, she said “[t]he Court’s increasingly expansive view of the Free Exercise Clause risks swallowing the space between the Religion Clauses that once ‘permit[ted] religious exercise to exist without sponsorship and without interference.’” Third, Justice Sotomayor characterized the Court’s decision as “especially perverse because the benefit at issue is the public education to which all of Maine’s children are entitled under the State Constitution.” The Court’s decision, she said, “leads us to a place where separation of church and state becomes a constitutional violation.”