Carson V. Makin Explained: What's At Stake For Religious Schools, LGBTQ Kids

The Supreme Court of the United States. Creative Commons photo.

(ANALYSIS) The U.S. Supreme Court will hear a potentially landmark case for religious schools on Dec. 8, Carson v. Makin. Up for discussion is whether Maine’s law — which excludes religious schools from the diversity of schooling options that students and their families have access to in an otherwise broadly accessible public student aid program — infringes on First Amendment constitutional protections. 

The Facts

Maine’s Constitution requires that students have access to publicly funded education. Yet, this mandate is practically difficult to carry out. Over half of Maine’s 260 school districts do not run public middle and high schools. To address this problem, a Maine law requires that, in order to guarantee free public secondary education for all the students in the state, these school districts either:

(1) contract with a secondary school — whether a public school in a nearby SAU (school district) or an "approved" private school — for school privileges, id. §§ 2701-2702, 5204(3), or (2) "pay the tuition ... at the public school or the approved private school of the parent's choice at which the student [from their SAU] is accepted," id. § 5204(4).

The Maine statute further requires the school be a “nonsectarian” — not adhering to a particular viewpoint, or religion, in this case — educational institution. In 2018, parents filed a lawsuit against the state of Maine, claiming that this requirement, which prohibits families from choosing religious schools from this generally available student aid program, violated the free exercise clause under the First Amendment of the U.S. Constitution. 

The plaintiffs, the Carsons and the Gillises, choose to send their children to the private, nonprofit Bangor Christian School. The plaintiffs stated they were exercising their religious freedom in selecting this educational institution "because the school’s worldview aligns with their sincerely held religious beliefs and because of the school's high academic standards.” Moreover, this school is fully accredited by the New England Association of Schools and Colleges.

Also listed as plaintiffs in the suit are the Nelsons, who send their daughter to a private secular school but would prefer to send her to a private faith-based academy with high academic standards. They said in the suit that they cannot afford to send more than one child to this school because it is excluded from the public student aid program and therefore ineligible for tuition reimbursement. 

The Legal Arguments

The plaintiffs were denied relief at the Maine district and appellate court levels. Given the Supreme Court’s ruling in Espinoza v. Montana Department of Revenue in 2020, these Maine parents appealed their case to the highest level. In Espinoza, the state of Montana prohibited the use of scholarships for sectarian schools. As Notre Dame law professor Rick Garnatt commented at the time, Espinoza did much to begin to correct a longstanding misinterpretation of the First Amendment notion of separation of church and state:

A misunderstanding about the true meaning of church-state separation caused courts and legislators alike to insist on discriminatory treatment of religious schools and the families who choose them. In fact, however, government neutrality toward, and equal treatment of, religious schools is entirely consistent with the principle of separation of church and state. What is more, Chief Justice Roberts reminded us, it offends the First Amendment's religious-liberty guarantee to penalize people, by withholding otherwise available benefits, for their religious choices.

In Carson v. Makin, the state of Maine argued that its statute excluding sectarian schools from participation in generally available student aid programs is constitutional. Maine contended that its law distinguishes between sectarian or religious status — simply being affiliated with a religion — and “religious use.”

A federal appeals court concurred with Maine, noting that the Espinoza precedent only held that the exclusion of sectarian schools based on their sectarian status was unconstitutional but did not resolve the legal question of whether broadly available student aid programs could exclude religious schools for religious use. Religious use, in this context, means the formation of students in a religious manner, through elements such as faith-shaped curriculum, worship activities, etc.

The state of Maine’s argument, according to Harvard Law professor of constitutional law and theory Mark Tushnet, is essentially that the elementary schools are completely nonsectarian and that the state should be able to provide exclusively nonsectarian options in secondary education as well.  

“And that’s what they’re trying to accomplish: to have the same kind of nonsectarian education for high school students that they provide to elementary school students,” Tushnet wrote in Harvard Law Today.

SCOTUS’ Interests

Over the last several years, the court has made clear that discrimination against sectarian educational institutions in a generally applicable government funding program simply because of religious status/affiliation is unconstitutional. However, the question of whether a state government can prohibit participation of sectarian schools based on explicitly religious programming, religious use, has yet to be firmly determined. As Tushnet notes:

Now, the doctrinal formulation is going to be whether the funds are denied because of mere status of the schools as sectarian, or whether they’re denied because the state believes that the money is going to be used for sectarian purposes. The formal test will be status versus use. But the background is this concern about discrimination against religious institutions.

Becket Law, a prominent religious freedom public interest law firm that submitted an amicus brief in support of the parents in this case, entirely rejects the status/use distinction. Becket has argued that many religious educational institutions, by their very nature, cannot separate their religious identity from all the ways their curriculum and programming form children. Becket Law’s Diana Thomson posited:

If the government excludes religious groups because they use the funds in a religious manner due to their religious beliefs, that is no better than excluding them because they hold those beliefs.

Whose Discrimination?

This case has become a lightning rod in the culture wars. Americans United for Separation of Church and State tweeted, “Both of the private religious schools directly involved in Carson v. Makin discriminate in admissions and employment against non-Christians and #LGBTQ people.” And a Vox headline declared, “The religious right wants states’ tax dollars, and the Supreme Court is likely to agree.”

A Newsweek headline similarly appealed to the language of discrimination to support the plaintiffs, declaring ”States must stop discriminating against religious schools.” In this article, Garnatt and Rogers state:

Even if a school meets the state's accreditation and curriculum requirements, if it promotes religious belief or incorporates aspects of religious practice, it's out. This discriminatory rule imposes an unjust choice on parents and children: abandon the richness of a religious-school education or give up otherwise available financial support.

Although the discrimination wars serve as a powerful linguistic currency in our culture that rewards zero-sum game solutions, there are limits to appealing to discriminatory harms in this case. When we frame our opinions about serious and foundational constitutional issues simply in terms of whose worldview we agree with or what outcome supports our worldview, we do a disservice not only to our civic neighbors with whom we fundamentally disagree but also to ourselves and our children.

In Carson v Makin, an outcome for either side would lead to some possible form of discrimination or exclusion: either of religious schools or particular members of a school’s community. This is not the basis on which this decision ought to be made. We live in a pluralistic society in which different families seek different educational opportunities for their children.

Secularism is not a neutral worldview; it too is an inherently sectarian way of relating to and making meaning of the world. We are all sectarian, in that we all live out our deepest animating ethics and understandings of what it means to be human, to recognize or not to recognize the sacred essence of material reality and to educate our children in alignment with our most fundamental values.  

I wonder how progressives would view this case if it involved a religious school that taught LGBT inclusion, rooted in deep theological commitments — religious use? I wonder how Christian conservatives would view this case if it involved state funding going to support a Muslim school, or a reconstructionist Jewish academy upholding critical race theory on a religious basis? I pray that Christians, in this season of advent, can prayerfully await a SCOTUS argument and decision process that puts constitutional principles at the center of the ruling — not popular outcomes in the culture wars.

Chelsea Langston Bombino is a believer in sacred communities, a wife and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.