CHURCH OF SATAN: MAKIN and CARSON give great breakdown as Supreme Court STRIKES DOWN a Maine education program that provides tuition assistance for students to attend some private schools but excludes schools that provide religious instruction

The Supreme Court STRIKES DOWN a Maine education program that provides tuition assistance for students to attend some private schools but excludes schools that provide religious instruction.

SCOTUS says the exclusion of religious schools is unconstitutional.

CARSON, AS PARENT AND NEXT FRIEND OF O. C., ET AL. v.

MAKIN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

No. 20–1088. Argued December 8, 2021—Decided June 21, 2022

Maine has enacted a program of tuition assistance for parents who live

in school districts that neither operate a secondary school of their own

nor contract with a particular school in another district. Under that

program, parents designate the secondary school they would like their

child to attend, and the school district transmits payments to that

school to help defray the costs of tuition. Participating private schools

must meet certain requirements to be eligible to receive tuition pay-

ments, including either accreditation from the New England Associa-

tion of Schools and Colleges (NEASC) or approval from the Maine De-

partment of Education. But they may otherwise differ from Maine

public schools in various ways. Since 1981, however, Maine has lim-

ited tuition assistance payments to “nonsectarian” schools.

Petitioners sought tuition assistance to send their children to Ban-

gor Christian Schools (BCS) and Temple Academy. Although both

BCS and Temple Academy are accredited by NEASC, the schools do

not qualify as “nonsectarian” and are thus ineligible to receive tuition

payments under Maine’s tuition assistance program. Petitioners sued

the commissioner of the Maine Department of Education, alleging that

the “nonsectarian” requirement violated the Free Exercise Clause and

the Establishment Clause of the First Amendment, as well as the

Equal Protection Clause of the Fourteenth Amendment. The District

Court rejected petitioners’ constitutional claims and granted judgment

to the commissioner. The First Circuit affirmed.

Held: Maine’s “nonsectarian” requirement for otherwise generally avail-

able tuition assistance payments violates the Free Exercise Clause.

Pp. 6–18.

(a) The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion,

not just outright prohibitions.” Lyng v. Northwest Indian Cemetery

Protective Assn., 485 U. S. 439, 450. The Court recently applied this

principle in the context of two state efforts to withhold otherwise avail-

able public benefits from religious organizations. In Trinity Lutheran

Church of Columbia, Inc. v. Comer, 582 U. S. ___, the Court considered

a Missouri program that offered grants to qualifying nonprofit organi-

zations that installed cushioning playground surfaces, but denied such

grants to any applicant that was owned or controlled by a church, sect,

or other religious entity. The Court 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.” 582 U. S., at ___–___. And in

Espinoza v. Montana Department of Revenue, 591 U. S. ___, the Court

held that a provision of the Montana Constitution barring government

aid to any school “controlled in whole or in part by any church, sect, or

denomination” violated the Free Exercise Clause by prohibiting fami-

lies from using otherwise available scholarship funds at religious

schools. 591 U. S., at ___. “A State need not subsidize private educa-

tion,” the Court concluded, “[b]ut once a State decides to do so, it can-

not disqualify some private schools solely because they are religious.”

Id., at ___. Pp. 6–8.

(b) The principles applied in Trinity Lutheran and Espinoza suffice

to resolve this case. Maine offers its citizens a benefit: tuition assis-

tance payments for any family whose school district does not provide

a public secondary school. Just like the wide range of nonprofit organ-

izations eligible to receive playground resurfacing grants in Trinity

Lutheran, a wide range of private schools are eligible to receive Maine

tuition assistance payments here. And like the daycare center in Trin-

ity Lutheran, the religious schools in this case are disqualified from

this generally available benefit “solely because of their religious char-

acter.” 582 U. S., at ___. Likewise, in Espinoza, as here, the Court

considered a state benefit program that provided public funds to sup-

port tuition payments at private schools and specifically carved out

private religious schools from those eligible to receive such funds. Both

that program and this one disqualify certain private schools from pub-

lic funding “solely because they are religious.” 591 U. S., at ___. A law

that operates in that manner must be subjected to “the strictest scru-

tiny.” Id., at ___–___.

Maine’s program cannot survive strict scrutiny. A neutral benefit

program in which public funds flow to religious organizations through

the independent choices of private benefit recipients does not offend

the Establishment Clause. See Zelman v. Simmons-Harris, 536 U. S.

639, 652–653. 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. But a State’s antiestablishment interest does not justify en-

actments that exclude some members of the community from an oth-

erwise generally available public benefit because of their religious ex-

ercise. Pp. 9–11.

(c) The First Circuit’s attempts to recharacterize the nature of

Maine’s tuition assistance program do not suffice to distinguish this

case from Trinity Lutheran or Espinoza. Pp. 11–18.

(1) The First Circuit held that the “nonsectarian” requirement was

constitutional because the benefit was properly viewed not as tuition

payments to be used at approved private schools but instead as fund-

ing for the “rough equivalent of the public school education that Maine

may permissibly require to be secular.” 979 F. 3d 21, 44. But the stat-

ute does not say anything like that. The benefit provided by statute 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. Moreover, the differences between private schools eligible

to receive tuition assistance under Maine’s program and a Maine pub-

lic school are numerous and important. To start with, private schools

do not have to accept all students, while public schools generally do.

In addition, the free public education that Maine insists it is providing

through the tuition assistance program is often not free, as some par-

ticipating private schools charge several times the maximum benefit

that Maine is willing to provide. And the curriculum taught at partic-

ipating private schools need not even resemble that taught in the

Maine public schools.

The key manner in which participating private schools are required

to resemble Maine public schools, however, is that they must be secu-

lar. Maine may provide a strictly secular education in its public

schools. But BCS and Temple Academy—like numerous other recipi-

ents of Maine tuition assistance payments—are not public schools.

Maine has chosen to offer tuition assistance that parents may direct to

the public or private schools of their choice. Maine’s administration of

that benefit is subject to the free exercise principles governing any

public benefit program—including the prohibition on denying the ben-

efit based on a recipient’s religious exercise. Pp. 11–15.

(2) The Court of Appeals also attempted to distinguish this case from

Trinity Lutheran and Espinoza on the ground that the funding re-

strictions in those cases were “solely status-based religious discrimi-

nation,” while the challenged provision here “imposes a use-based re-

striction.” 979 F. 3d, at 35, 37–38. Trinity Lutheran and Espinoza

held that the Free Exercise Clause forbids discrimination on the basis

of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This

case illustrates why. “[E]ducating young people in their faith, incul-

cating its teachings, and training them to live their faith are responsi-

bilities that lie at the very core of the mission of a private religious

school.” Our Lady of Guadalupe School v. Morrissey-Berru, 591 U. S.

___, ___. In short, the prohibition on status-based discrimination un-

der the Free Exercise Clause is not a permission to engage in use-

based discrimination.

Locke v. Davey, 540 U. S. 712, does not assist Maine here. The schol-

arship funds at issue in Locke were intended to be used “to prepare for

the ministry.” Trinity Lutheran, 582 U. S., at ___. Locke’s reasoning

expressly turned on what it identified as the “historic and substantial

state interest” against using “taxpayer funds to support church lead-

ers.” 540 U. S., at 722, 725. But “it is clear that there is no ‘historic

and substantial’ tradition against aiding [private religious] schools”

that is “comparable.” Espinoza, 591 U. S., at ___. Locke cannot be read

to generally authorize the State to exclude religious persons from the

enjoyment of public benefits on the basis of their anticipated religious

use of the benefits. Pp. 15–18.

979 F. 3d 21, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,

ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. BREYER, J., filed

a dissenting opinion, in which KAGAN J., joined, and in which SO-

TOMAYOR, J., joined as to all but Part I–B. SOTOMAYOR, J., filed a dissenting opinion.