Bloomberg Law
June 24, 2022, 8:00 AM

Is the Establishment Clause Dead? A Message From SCOTUS

Matthew Patrick Shaw
Matthew Patrick Shaw
Vanderbilt Law School

The US Supreme Court’s Carson v. Makin ruling, written by Chief Justice John Roberts, held that Maine cannot exclude religious schools from participating in a state tuition assistance program without violating the First Amendment’s Free Exercise Clause rights of students who might choose such schools over nonsectarian independent schools.

Justice Stephen Breyer, in dissent, wrote that the decision could open the floodgates for compelled state funding of religious education. He was joined in full by Justice Elana Kagan and in part by Justice Sonia Sotomayor, who wrote separately to criticize the Roberts court’s erosion of previously settled law on the “play in the joints” balancing between the Free Exercise and Establishment clauses in favor of an emergent doctrine that summarily—and atextually—subordinates the constitutional mandate against governmental establishment of religion to individual free-exercise claims.

Options for Maine Students

The facts are relatively simple. Maine’s state constitution guarantees all school-aged children a free, public education, but not all of its school districts provide secondary schools.

Maine law allows districts that don’t operate high schools two options to meet their constitutional obligation: The first is to partner with neighboring districts that do, and high school students can attend school in partnering districts. However, for a variety of reasons, this solution is not available for some students.

The second raises the issue in the case. Students whose districts have not provided access to a nearby public high school—and only those students—are allowed to choose a school from an approved list, and the home district transfers an allotment to the receiving school.

There is a catch—since 1981, the school must be public or “nonsectarian” in nature. This means that religious schools, even those accredited or approved by the state department of education, cannot participate in the tuition-assistance program. Inversely, it also means that a student cannot choose a religious school as their replacement school.

The majority viewed Maine’s exclusion of religious schools as infringing upon students’ First Amendment rights to religious free exercise in part because it interpreted Maine’s law as enabling modern-day “school choice” and not as providing the public school stand-in the state legislators had in mind when they created the program in 1873.

From that perspective, the court said the exclusion of religious schools from the program was unconstitutional under Espinoza v. Montana Dep’t of Revenue, which did involve the interchange between a modern-day school-choice voucher program and the latter-day operation of an early 20th-century anti-Catholic Blaine Amendment to the Montana state constitution.

The majority said that by Maine’s selectively conditioning access to education funds on enrollment in a nonsectarian high school, which it said coerced eligible students from selecting parochial schools, didn’t survive strict scrutiny.

The dissenters recognized the establishment issues as equally, if not more dispositive of the state’s actions in this case, than free exercise. They rightly understood the Maine program as providing a replacement for public education, and not school choice as the majority insisted. The legislature had not, as was the case in Espinoza or Zelman v. Simmons-Harris, created a program to help students who wanted to opt-out of public education.

Rather, it sought to ensure that every Maine student would have access to secondary schooling by assisting only to those who would not otherwise have access. If one understands Maine’s interest this way, it not only has a reasonable justification for excluding religious schools from the tuition-assistance program, it has a constitutional obligation to do so per the establishment clause.

Questions Remain on Religious Funding

On the heels of Espinoza and Trinity Lutheran v. Comer, the latter of which found the exclusion of churches from state-operated grants programs unconstitutional, there is considerable disquiet about whether Carson ushers in a new requirement that the states fund religious education (among other services).

As Breyer said, does this outcome “mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”

The majority attempts to sidestep this conversation by depicting the outcome in this case as a function of Maine’s choice to establish a tuition-assistance program in the first place, and not its own intentional misunderstanding of the state’s legislative intent. According to the majority, there were other options available to the state legislature, including requiring all districts to operate high schools, the state itself operating boarding schools, or a collective transportation program.

Separation of Church and State

Sotomayor pointed out the functional plausibility of any of these given Maine’s demographic circumstances. She further criticized the majority’s sleight-of-hand logic that would invest the state with a false choice only to divest it of its authority to balance the consequences of that less-than-optimal-choice with its concurrent constitutional obligations against religious establishment.

She also examined the incremental erosion of the court’s Establishment Clause doctrine. Echoing her dissent from Trinity Lutheran, she said the majority leads “us to a place where separation of church and state becomes a constitutional violation.”

More alarmingly, she raises the implications of making the Establishment Clause effective dead letter. “If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any state that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.

Carson unsettles the previously well-established secular nature of the state’s educational interest, including its interest in the curriculum students in all schools—public, charter, independent, religious, and home—receive. Perhaps Maine’s best response—and the remaining states’—is to review the education its students allegedly receive with greater interest and not less.

The states retain police power and policy authority in education. They could mandate stronger minimum curricular standards and teacher qualifications so long as they don’t impose more than a de minimis infringement on religious free exercise or make private choices for independent schools inconsequential.

If independent schools are performing state functions while receiving tax support, perhaps they become state actors. If so, arguments that they should be subject to federal anti-discrimination statutes would become stronger, particularly those attached to school funding. Through such an approach, one might also challenge state-funded religious schools’ discrimination against or refusal to admit LGBTQ+ students or students with disabilities.

And while both state-action and anti-discrimination mandates would confront “religious freedom restoration acts” and the resurgent First Amendment free-exercise doctrine, this approach has promise because it speaks the court’s preferred language of individual choice against state educational diktat and invokes the 14th Amendment to do so.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Matthew Patrick Shaw is an assistant professor of law at Vanderbilt Law School. His scholarship focuses on the intersection of federal law and educational policy and education rights.

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