Carson v. Makin: Can the Government Fund Private Religious Education?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” [1] These words comprise the Free Exercise Clause of the First Amendment, a legal principle that influenced the United States since its creation and that promises a citizen the right to practice a religion of their choice. [2] This clause and the Establishment Clause, which prohibits the government from “making any law respecting an establishment of religion,” have guided the approaches to religion and government taken by American lawmakers. [3] Over the years, American courts have adjudicated over the question of where to draw the line between government actions and freedom of religion, for example, the debate over whether it is appropriate to utilize government funds for education at religious schools and to keep government funds from supporting religious institutions. Carson v. Makin (2022) reflects ongoing adjudication over the Free Exercise Clause, and the Supreme Court decision has raised questions about the future of the relationship between the government and organized religion. The lineage of precedent followed by the Supreme Court in Carson v. Makin demonstrates that the government should not interfere with a family's choice for religious education because it overreaches into rights protected by the Free Exercise Clause.

The precedent followed in Carson v. Makin was established in Engel v. Vitale (1962). In the latter case, the petitioner, a Jewish parent named Steven Engel, argued that the New York School Board should not have the option for public school students to recite a nondenominational prayer at school alongside the pledge of allegiance, and children could only abstain if they received a written note from their parents. [4] Engel brought this case forward because he believed that a one-size-fits-all prayer should not be imposed on children of different faiths or on those who don’t have a faith. This case was brought to the Supreme Court of New York and Court of Appeals in New York, both of which found that the prayer had not established nor promoted a specific religion. The petitioner then appealed to the Supreme Court in 1962, where the Court agreed in a 6-1 decision (two Justices abstained), broadening the definition of the Free Exercise Clause and pushing forward the idea that any sort of public governmental promotion of religion should not be allowed because it creates a large danger of overlap between church and state. [5] Justice Douglas’ concurring opinion established that the government should not be offering state aid to religious schools because they should not be financing any religious actions stating, “once government finances a religious exercise it inserts a divisive influence into our communities.”. As one of the first cases addressing the role of religion in public education, this laid the groundwork for many cases to come.

In Zelman v. Simmons-Harris, the Supreme Court found that if a grant is being offered to an individual to obtain an education, then that individual may use that money as they see fit and the government cannot direct them on how to use it. This case, brought forward by Ohio taxpayers, established that a school choice program that allows students to obtain an education at a religious institution is not unconstitutional. This case expanded the definition of the Free Exercise clause because it allowed the state of Ohio to use the taxes that they collected to fund the education of students at religious institutions. [6] This ruling marked an expanded definition of the Free Exercise Clause because it showed that money that would be offered to families to support their child’s education and how the state collects the money through their taxing system is not unconstitutional. The Zelman precedent was then significant to Trinity Lutheran Church of Columbia v. Comer (2017), where the Court found that the Free Exercise Clause did not permit Missouri the ability to discriminate against institutions based on their religious association. [7] In this case, Trinity Lutheran, a religious preschool, applied for a state grant to purchase recycled tire materials for their playground. The state rejected their application on the basis of their religious affiliation. The Court ruled that this action was a violation of the Free Exercise Clause because it failed to pass the strict scrutiny test. Applied here, the strict scrutiny test would hold that the government's rejection of the state grant for Trinity Lutheran is presumptively invalid unless the state can show that the action was necessary to achieve a compelling government interest and was narrowly tailored to achieve that interest. [8] The Court found that Missouri created this law solely to avoid issues with the First Amendment rather than to promote a genuine concern for awarding state resources to religiously affiliated schools, which failed to establish a compelling state interest, and found that the state unfairly discriminated against organizations that would have otherwise qualified for this service. The Trinity case reflects a nuanced understanding of discrimination because it established that state governments cannot discriminate against schools to which they offer aid, on the basis of religious affiliation.

The Supreme Court’s decision in Espinoza v. Montana, established that a governmental entity cannot discriminate against a person(s) based on their religious status. In the case, the plaintiffs were a few low-income mothers who had applied for scholarships to keep their children enrolled in a religious school. Montana offered these scholarships for students, but did not permit them to use them at religious institutions because their state constitution did not allow public funds to be utilized for religious activities. [9] The Court ruled that the Montana Department of Revenue was violating the Constitution by discriminating against students who qualify for these scholarships simply because they intended to use them at schools with a religious affiliation. The Court's clarification of religious affiliation differentiated Carson v. Makin and Espinoza v. Montana.

In Espinoza v. Montana, the Court held that this violated the student's right to free exercise of their religion by denying them school choice when the state has offered them funding to seek higher education due to their inability to provide them with a secondary school. The majority held that the Free Exercise Clause protects “from unfair treatment” and that Montana could only implement this rule if it passed the strict scrutiny test. [10] The Court found that the state interest

in this case was the separation of church and state further than it was intended to be, and therefore not sufficiently compelling to be justifiable. Since this case was decided based on religious status, it did not clarify if a family could use government funds for religious use. This created situations where a family could choose to use state funding for a school affiliated with the Catholic Church, but could not use the funding at a school with a mandatory Catholic Theology class. [11] In Carson v. Makin,the courts decided that it was unconstitutional for Maine to deny these families their stipend, adding to the precedent previously established in Montana v. Espinoza and cases tracing back to Zelman v. Simon-Harris. The lineage that the courts have established through these cases emphasize that education and school choice are rights that will always be protected through the First Amendment, and very few instances can prove that religious educational institutions do not qualify for governmental assistance.

While the Appellate Court was deliberating Carson v. Makin, the ruling in Espinoza v. Montana was released. This case upheld precedent that a family cannot be discriminated against based on religious status. Espinoza was a critical aspect in Carson v. Makin because it posed the question: Can a private citizen be denied from using government funds to support religious use rather than their religious status? In Carson v. Makin, the Court ruled that government stipends can in fact be used to fund education at religious institutions. [12] The petitioners, Amy and Dave Carson along with 2 other families, had chosen to send their child to a nonsecular school and wanted to utilize the funds that Maine should have provided them to do so. Maine, where this case originated, has a large rural population, and is often unable to offer public secondary school options for families. To address this issue, Maine created a school voucher program in 1870 intended to assist families with the cost of private secondary schools that might be located closer to them rather than creating their own public school in these unserved areas. The petitioners, 3 families from small rural towns in Maine, opted to send their children to schools that were not approved by the Maine State Government and wanted to utilize the stipends Maine offered them to help pay tuition costs. However, the Maine State Government refused to offer the family their stipend. The Carson family and two other families took the issue to court, where the U.S. District Court for the District of Maine ruled against them. The case then went to the U.S. Court of Appeals for the First Circuit, where the district court's decision was upheld on the grounds that if a school actively teaches religious material then the state of Maine is justified in not granting these families their tuition assistance stipend. [13] The court answered the question, and showed that utilizing governmental funds to promote religious use, such as sending a child to a religious private school utilizing government funds, was constitutional but allowing that child to use the money to strictly promote something religious, such as taking the school bus to a church, was unconstitutional. The Carson v. Makin decision has furthered a popular opinion that has persisted among the members of the Court: allowing public money to go towards supporting religious education is permitted under the Free Exercise Clause.

In Carson v. Makin, Maine is offering funds for a problem they acknowledge they do not have the resources to resolve: a public secondary school for their child to attend. To mitigate their shortcomings, the state is offering a stipend to each family for the typical costs it would be for the state to send that child to a public school. Rather than allowing a family to utilize the funds how they choose, the state has placed restrictions on them based on their faith. Preventing students from using money that they would be offered if they went to any other “approved” schools is clear government overreach into a right enshrined in the Constitution. While it may be blurring the lines of church and state, it is clear discrimination to not allow a student to use a grant to obtain any sort of education they want on the basis of religion, which the Court defined in Lemon v. Kurtzman as a principle that no government action “can promote nor inhibit religion.” [14] The Court has constantly found in all of these cases that the discrimination and lack of service towards a school or family based on them seeking their faith is unconstitutional.

In several of these cases, the dissenting Justices, such as Justice Ginsberg in Espinoza v. Montana, argue that taking no action and remaining neutral is also an acceptable option. [15] They believe that the courts should not have taken any action in these cases. They argue that these scenarios in all of these cases do not place a significant burden on the petitioner seeing as their children are still able to access a quality education utilizing government funds. They further claim that the Court is expanding its power too much by defining the grounds on which religious organizations can be granted aid by the state and because they are adding more restrictions to what this clause can and can’t allow, they are actually not solving the problem of the vagueness of the Clause but are, in fact, making it more complicated.

This line of clarifying and adding nuance to the Free Exercise Clause in all religious education cases that comes to the Court raises a series of questions about whether America is boxing itself into particular definitions or expanding the abilities of the Free Exercise Clause. The Court has clearly built walls around what government funds can and cannot be used for in terms of education, but would a court case regarding mental health grants being awarded to a church call for this same line of precedent? The establishment of a clear line of precedent favoring families utilizing government funds for education at religious institutions makes it unclear if education is the norm or the exception.

While it is understandable that in the context of education parents should be able to utilize their grant money to send their child to an educational institution of their choosing, this decision creates implications for other sectors of government aid. Many religious institutions provide aid to their communities as a part of their faith, but have been exempted from taxes and are ineligible to receive aid from the government. If a private citizen receives money for the government for their mental health, is that citizen able to find this assistance at a church? It is unclear whether Carson v. Makin will change the longstanding separation of church and state now that it has been established that when a government grants an individual family or entity funds to pursue an

objective, the recipient can do so at a religious institution. Carson v. Makin raises fascinating questions about the future of the relationship between church and the state, but it is possible to state with confidence that the courts will side with those who are subject to discrimination.

Edited by Daniella Sapone

[1] “First Amendment and Religion.” n.d. United States Courts. https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-relig ion#:~:text=The%20Free%20Exercise%20Clause%20protects.

[2] “The Free Exercise Clause.” n.d. Lawshelf.com. https://lawshelf.com/shortvideoscontentview/the-free-exercise-clause.

[3] “First Amendment and Religion”

[4] “Engel v. Vitale, 370 U.S. 421 (1962).” 2019. Justia Law. 2019. https://supreme.justia.com/cases/federal/us/370/421/#tab-opinion-1943887.

[5] Hudson Jr., David. “Engel v. Vitale.” Mtsu.edu, 2018, www.mtsu.edu/first-amendment/article/665/engel-v-vitale.

[6] “Zelman v. Simmons-Harris, 536 U.S. 639 (2002).” n.d. Justia Law. https://supreme.justia.com/cases/federal/us/536/639/#tab-opinion-1961134.

[7] “Trinity Lutheran Church of Columbia, Inc. V. Comer, 582 U.S. ___ (2017).” n.d. Justia Law. https://supreme.justia.com/cases/federal/us/582/15-577/#tab-opinion-3752809.

[8] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012
[9] “Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020).” n.d. Justia Law.

https://supreme.justia.com/cases/federal/us/591/18-1195/#tab-opinion-4267762.

[10] “Strict Scrutiny.” n.d. LII / Legal Information Institute. https://www.law.cornell.edu/wex/strict_scrutiny.

[11]“Carson v. Makin.” 2020. Institute for Justice. 2020. https://ij.org/case/maine-school-choice-3/?gclid=CjwKCAiApvebBhAvEiwAe7mHSBohX9vlbT 1OOLQoT_SyHuqwKYaOgWu9_jxzXKAAlVIV-BffMP-lkRoCv0sQAvD_BwE.

[12] “Carson v. Makin, 596 U.S. ___ (2022).” n.d. Justia Law. https://supreme.justia.com/cases/federal/us/596/20-1088/#tab-opinion-4598446.

[13] “Carson v. Makin”

[14] “Lemon v. Kurtzman, 403 U.S. 602 (1971).” Justia Law, 2019, supreme.justia.com/cases/federal/us/403/602/.

[15] “Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020)”