Supreme Court strikes down restrictions on public funding of religious schools

The Supreme Court ruled on Tuesday against restrictions excluding religious schools from programs that allow public funding of private schools, the latest in a series of victories for religious schooling advocates at the high court in recent years.

Carson v. Makin hinged on a Maine law that provided families in rural areas without local public schools with funding to attend private schools or nearby public schools, but excluded “sectarian” schools. The court struck down this restriction in a 6-3 decision authored by Chief Justice John Roberts, with the court’s three liberals dissenting.

“The State pays for tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion,” Roberts wrote. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”

The decision was hailed by a range of Jewish groups — including the Orthodox Union, National Jewish Commission on Law and Public Affairs (COLPA), Agudath Israel of America, National Council of Young Israel and Jewish Coalition for Religious Liberty (JCRL) — that had filed amicus briefs supporting such an outcome.

“Today’s ruling by the Supreme Court is the culmination of decades of determined advocacy by the Orthodox Union and our partners,” Nathan Diament, the Orthodox Union’s executive director for public policy, said in a statement. “The essential promise of the First Amendment’s religion clause is to guarantee religious freedom in the United States by requiring government neutrality toward religion. A state discriminating against religion — as Maine did in its tuition assistance program — is just as unconstitutional as a state promoting one particular religion.”

Rabbi Abba Cohen, Agudath Israel’s vice president for government affairs, said in a statement that the ruling should allow other states with provisions in their state constitutions blocking aid to religious organizations to “effectively feel free to now enact programs that encourage or provide assistance to religious schools on an equal basis with other nonpublic schools.”

In his dissent, Justice Stephen Breyer argued that, under the court’s ruling, the state would be in effect paying ministers to “teach the practice of religion” to children, and wrote, “The Establishment Clause was intended to keep the State out of this area.” 

In a separate dissent, Justice Sonia Sotomayor added that the decision “requires Maine to fund what many of its citizens believe to be discrimination of other kinds” — the schools in question in the case explicitly discriminate against applicants and teachers on the basis of religion and sexual orientation. “Today, the court leads us to a place where separation of church and state becomes a constitutional violation,” Sotomayor continued.

Other Jewish groups such as the Anti-Defamation League, National Council of Jewish Women, Union for Reform Judaism and Women of Reform Judaism supported upholding the Maine law.

“We are deeply concerned by today’s Supreme Court decision in Carson v. Makin. It marks the first time the Court has held that a state must pay for religious education as part of a tuition program meant to provide free public education for all,” ADL CEO Jonathan Greenblatt told JI. “This ruling undermines the core principle of church-state separation and sets a dangerous precedent. We believe it opens the door to taxpayer-funded schools and programs that deny admission to religious and other minorities, and potentially state-funded religious indoctrination.”

In previous recent cases, the court had drawn distinctions between religious institutions that receive public funding for secular projects — a playground, in one case — and schools that use public funding for religious purposes, such as religious instruction. That distinction, known as the status/use distinction, has been “slammed shut and locked” in Tuesday’s ruling, according to Howard Slugh, the general counsel for JCRL.

“The Free Exercise Clause was supposed to prevent the government from stopping you in your religious practice. It was not meant to require the government to fund it,” said Caroline Mala Corbin, a law professor at the University of Miami specializing in the First Amendment’s speech and religion clauses who disagreed with the Supreme Court’s ruling. “The vast majority of private religious schools are Christian religious schools… [Taxpayer] money will be used to pay for Christian indoctrination, and this is exactly what the Establishment Clause was supposed to protect against.”

Diament argued that the “status/use distinction is in itself, harmful” because it can be difficult to parse what activities are performed because of religious beliefs.

In his dissent, Breyer raised concerns that the Carson decision could be interpreted to mean that any school district that pays for public schools must also provide funding to parents who wish to send their children to religious schools instead.

“We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education,” he argued.

Roberts argued that Breyer misinterpreted his decision.

“The dissidents are wrong to say that under our decision today Maine ‘must’ fund religious education,” Roberts said in his opinion.

Observers on both sides of the debate generally agreed that the majority opinion did not necessarily mandate public funding of religious education in any case where public schooling is provided.

“I see that as frivolous to be quite honest,” said Slugh. “There’s a clear distinction between the state saying, ‘We’ll only fund public schools,’ and the state saying, ‘We’ll fund some private schools but not others.’ I think it’s very easy to draw a line for a state and say the only schools we’re going to fund are our own public schools.”

“I do not think this decision requires that outcome,” Corbin agreed. “For government to have a rule that taxpayer money will only be used for public education does not have that same problem of discriminating against religion… It’s certainly conceivable that a later decision will move away from the stopping point this one [sets], but this one does have a stopping point.”

Tuesday’s decision stopped short of fulfilling the hopes set out in the COLPA brief, which called for the Supreme Court to overturn the 1971 decision in Lemon v. Kurtzman, where the court established a test to decide whether laws concerning religion are discriminatory. Some religious liberty advocates argue the “Lemon test” permits for discrimination.

Slugh noted that the Maine decision is the latest in a series that have moved “very far” from Lemon, although the Court has repeatedly avoided directly striking down Lemon. He argued that overruling Lemon would “prevent the confusion” that has prompted cases like Carson.

Nathan Lewin, a seasoned constitutional lawyer who helped author the COLPA brief, said that Lemon has not been directly challenged in any case, but he believes the “court is moving in that direction,” albeit slowly.

“I didn’t think the court was going to use this case to overrule Lemon v. Kurtzman, but I wanted to push that idea in their heads for purposes of future litigation,” Lewin said. He said that overruling the precedent would be “logically… the next step.”