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Justices Open Door to School Choice Funding for Religious Groups

June 22, 2022, 2:41 PM

The US Supreme Court’s latest church-state ruling will have implications far beyond Maine, requiring states to include religious groups in taxpayer-funded school choice programs.

Maine and Vermont are the only states that subsidize private schools in rural and sparsely populated areas where it doesn’t make financial sense to establish a government-run school. An ideologically split court said Tuesday in Carson v. Makin that the state must allow parents to use that money for religious education, too.

Advocates on the left and the right agree that the majority’s reasoning doesn’t turn on the unique structure of Maine’s educational system and will require states to extend subsidies to religious educational institutions when private schools are getting public funding.

“What it says—really for the first time—is that a failure to subsidize religious practices or religious entities when you are also subsidizing secular versions of those activities amounts to discrimination on the basis of religion,” said Columbia Law School’s Katherine Franke.

“It’s all or nothing,” said the Cato Institute’s Clark Neily, whose group filed a friend-of-the-court brief objecting to the state’s exclusion of religious schools from the program. States “don’t have to provide educational choice options,” Neily said, but if they do, “it will need to be evenhanded.”

The Supreme Court under Chief Justice John Roberts since 2005 has consistently ruled in favor of those seeking more religious freedom at the cost of a robust separation of church and state.

Status Versus Use

Of particular significance in Tuesday’s ruling is the court’s rejection of a distinction between limits on the use of public funds based on a group’s religious status versus the use of those funds for a religious purpose, said Lea Patterson of the First Liberty Institute, which helped bring the case against Maine.

The “lines get a little muddy, but there has always been this conversation about what is this money going to fund,” said Katy Joseph of the Interfaith Alliance, which filed an amicus brief in support of the state.

The court’s 2017 ruling in Trinity Lutheran Church of Columbia v. Comer made clear that states couldn’t exclude religious groups from generally available funding just because they were affiliated with a church or other religious group.

There, a 7-2 court said Missouri unconstitutionally discriminated against a preschool by excluding it from a playground resurfacing program simply because it was affiliated with a church.

But activities considered religious uses such as training a congregation’s leadership or restoring a religious building have traditionally been seen as “out of bounds,” Joseph said.

The majority in Carson v. Makin made clear that distinction doesn’t matter.

Trinity Lutheran and the court’s later decisions “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause,” Roberts wrote for the 6-3 court.

The status-use distinction “is no longer relevant,” Joseph said.

Church and State

Those supporting a robust separation of church and state worry that the ruling can be read even more broadly, to require states to subsidize religious education regardless of whether they provide alternative school choice funding.

“One wonders whether just providing public education itself, and not subsidizing religious education, might be the next horizon,” Franke said.

John Bursch, of the legal nonprofit Alliance Defending Freedom, said the case can’t be read that broadly. The nonprofit law firm is currently challenging Vermont’s funding scheme.

The opinion is clear that states don’t “have to fund religious schools,” Bursch said. “But if the state makes funding available to everyone, but then excludes religious schools, that’s what’s unconstitutional.”

In her dissent, Justice Sonia Sotomayor lamented how far the court has moved in the five years since Trinity Lutheran.

“In 2017, I feared that the Court was leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment,” Sotomayor wrote. “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation,” she said.

Noting the push for greater parent control over school curriculum and things like Covid policy, Joseph said “we’re entering a very different educational model in the United States.”

“It’s difficult to imagine what that might look like in another five years.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at