Carson v. Makin

LII note: the oral arguments in Carson v. Makin are now available from Oyez. The U.S. Supreme Court has now decided Carson v. Makin .


Can a state restrict students’ access to a state-sponsored financial assistance program when the aid would fund attending private religious schools with religious teaching?

Oral argument: 
December 8, 2021

This case asks the Supreme Court to balance state public school funding schemes and First Amendment religious freedoms. Maine enacted a law for School Administrative Units without public secondary schools that allows them to provide tuition assistance for students to attend approved, nonsectarian private schools. Carson, Gillis, and Nelson (collectively “Carson”) contend that the nonsectarian requirement constitutes religious discrimination in violation of the Free Exercise Clause of the First Amendment. Makin, in her official capacity as the Commissioner of the Maine Department of Education, counters that Maine’s public school funding scheme is permissible because its purpose of funding secular public education implicates only religious “use” and not religious “status.” The outcome of this case has heavy implications for religious freedom, state school funding schemes, and accessibility to schooling.

Questions as Framed for the Court by the Parties 

Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.


Maine’s constitution mandates the state legislature to require towns to provide “support and maintenance” of public schools at the towns’ own expenses. Carson v. Makin at 25. To do so, the legislature divided the state into 260 school administrative units (“SAUs”) and required that each SAU “make suitable provisions” to maintain and support public schools. Id. Less than half of the SAUs contain a public secondary school. Id. Therefore, a Maine statute allows the SAUs without public secondary schools to either contract with a public secondary school in a nearby SAU or to pay tuition for a public or an “approved” private school of the parent’s choice. Id. To be “approved,” a private school must meet accreditation, reporting, and auditing requirements and must be “nonsectarian in accordance with the First Amendment.” Id. at 26.

Carson, Gillis, and Nelson (collectively “Carson”) are parents who live in SAUs that have no public secondary schools. Id. Their SAUs instead have chosen to pay tuition assistance for parents to send their children to “approved” private schools. Id. The Nelsons currently send their child to a nonsectarian school; however, they would prefer to send her to an accredited religious school, but cannot afford to do so without tuition assistance. Id. at 27. The Carsons and Gillises currently send their children to an accredited religious school and receive no tuition assistance. Id. Consequently, on August 21, 2018, Carson sued Makin, in her official capacity as the Commissioner of the Maine Department of Education, in the District of Maine, alleging that the “nonsectarian” requirement infringes on their “First Amendment right to the free exercise of religion.” Id. at 25, 26.

Makin responded by alleging that Carson did not have standing and did not state a claim on which relief could be granted. Id. at 27. Both parties stipulated to the facts that Carson’s choice of schools were “biblically integrated” and refused to hire homosexual teachers. Id. Additionally, the parties stipulated that the religious schools would not accept tuition assistance if they would be subjected to the Maine Human Rights Act (“MHRA”) which bans employment discrimination based on sexual orientation or gender identity. Id.

The Federal District Court for the District of Maine held that Carson had standing and rejected Carson’s contention that the Supreme Court’s holding in Trinity Lutheran Church of Columbia, Inc. v. Pauley (“Trinity Lutheran”) upset the First Circuit Court of Appeals’s holding in Eulitt v. Maine Department of Education (“Fullit”) because Trinity Lutheran involved discrimination based on religious identity rather than “religious uses of funding.” Id. at 28, 29. Thus, the District Court upheld Maine’s educational funding law. Id.

On July 23, 2019, Carson appealed to the First Circuit Court of Appeals. Id. Two weeks after the First Circuit heard oral arguments, the United States Supreme Court, in Espinoza v. Montana Department of Revenue (“Espinoza”) struck down a provision of Montana’s Constitution that prohibited state aid to church-run private schools. Id. at 29.

The First Circuit held that Carson satisfied the redressability requirement of standing—the requirement that a favorable decision will remedy their injury—because a ruling in Carson’s favor would give them an “opportunity” to enroll their children in religious secondary school. Id. at 30. Next, the First Circuit rejected Carson’s argument that Maine’s “nonsectarian” requirement was religious discrimination in violation of the Free Exercise Clause and thus, the Court upheld Maine’s law. Id. at 32. Relying on Espinoza and Trinity Lutheran, the First Circuit distinguished discrimination based on religious “status,” which is subject to strict scrutiny, from discrimination based on religious “use.” Id. at 34–35. Furthermore, the First Circuit reasoned that Maine’s funding rule was in place to ensure equal access to public—not private—education and thus simply by refusing to subsidize religious schools, Maine’s legislature did not show “impermissible animus” against religion. Id. at 35, 41.

The United States Supreme Court granted Carson certiorari on July 2, 2021.



Petitioner Carson argues that the First Circuit’s distinction between religious “use” and religious “status” restrictions cannot be reconciled with the Supreme Court’s prior jurisprudence and the plain text of the Free Exercise Clause. Brief for Petitioners, Carson at 16. Carson explains that “religious use” turns on whether a student’s financial aid will be applied towards religious instruction, and “religious status” refers to the school’s religious affiliation. Id. at 16–17, 22. Carson maintains the First Circuit misapplied two recent Supreme Court cases related to Free Exercise Clause challenges and religious schools, Espinoza v. Mont. Dep’t of Revenue (“Espinoza”) and Trinity Lutheran Church of Columbia, Inc v. Comer (“Trinity Lutheran”), when deciding that only “status-based” religious restrictions are subject to strict scrutiny analysis. Id. at 22. Carson emphasizes that the Supreme Court cautioned against reading Espinoza as allowing courts to apply a lesser scrutiny standard when confronted with cases about “religious uses of government aid”. Id.

Carson maintains that the First Congress settled on the broad language of “free exercise,” meaning that “freedom of action to all believers” was just as important as the freedom to believe. Id. at 25–26. Carson concludes that the use/status distinction is antithetical to the Free Exercise Clause’s text and history. Id. Furthermore, Carson posits that distinguishing between religious use/status is misleading because Maine’s exclusionary provision equally targets religious “use” and “status.” Id. at 31–32. Carson points out that religious families send their children to religious schools because of their “status” as practicing members of their religious faith. Id. at 32. Carson concludes that the use/status binary is not helpful because the interweaving of faith and education is part of the overarching mission of religious schools, and Maine’s funding policy necessarily discriminates against those schools because of their religious status. Id. at 33.

Respondent Makin counters that Maine’s decision to not fund private schools that provide religious instruction in its tuition assistance program is a constitutionally permissible use-based distinction. Brief for Respondent, Makin at 35. Makin asserts that Maine’s provision is based on religious “use” alone because Maine conditions the student’s tuition-funding eligibility on the school providing the student with religious instruction, not on whether the school is owned or operated by a religious organization. Id. at 36. Makin argues that this case is a prime example of the need for the use/status distinction because the distinction allows states to “play in the joints” of constitutionally permitted differences. Id. at 37. Moreover, Makin points out that states are primarily responsible for crafting their public education systems, and that Maine’s decision to exclude funding only when religious instruction comes into play should fall on the “use” side of the distinction. Id. at 38.

Even if the use/status distinction is not the analytical framework, Makin further argues that Maine’s tuition funding provisions would nonetheless satisfy strict scrutiny. Id. at 43. Makin contends that Maine has a compelling state interest in providing free public education to all children in the state. Id. Moreover, Makin stresses that the state legislature decided that children in Maine benefit from secular education because a nonsectarian environment produces a diverse “melting pot” and fosters open-mindedness and inclusivity. Id. at 43. Makin notes that private schools are only restricted from the funding program if they provide students with educational material from a religious viewpoint. Id. at 44. Makin concludes that it would be difficult to imagine how Maine could have more narrowly tailored its program because the state allows religious schools to participate in the funding program if they provide instruction akin to private, non-religious schools. Id. at 44–45.


Carson contends that Maine’s tuition assistance program violates the Establishment Clause because the funding exclusion lacks a “secular purpose.” Brief for Petitioners, Carson at 44-45. Carson stresses that the funding exclusion demonstrates animosity towards religion and religious groups. Id. at 46. Carson argues that the “primary effect” of the assistance program is to obstruct religious freedoms because (1) parents who want to send their children to private religious schools but cannot afford to do so must send their children to private secular schools or forgo tuition assistance or (2) parents who can afford and choose to send their children to private religious schools must cede public funding to which they are entitled. Id. Carson points out that the exclusions “excessively” intertwine government and religion because Maine’s exclusion scrutinizes private religious schools to determine whether the schools are simply affiliated with a religious organization or if they incorporate religious instruction into their lessons. Id. at 50. Carson further emphasizes that private religious schools whose religion obligates them to “pass on their faith” are prevented from participating in the tuition program compared to other religious schools that are not so compelled and can receive public funding. Id. Carson concludes that Maine’s funding program violates the Establishment Clause because the program is not distinguishing “between religion and nonreligion” but is actually differentiating “between religion and religion.” Id.

In response, Makin asserts that Maine’s tuition assistance program does not implicate the Establishment Clause because Maine established a “religiously neutral” public education funding scheme. Brief for Respondent, Makin at 47–48. Makin stresses that Maine’s exclusion serves a secular purpose because the exclusive function of the tuition-assistance program is to provide free public education to children in Maine. Id. at 48. Makin points out that there is no precedent for finding that a state impedes religion when it refuses to fund private religious schooling. Id. at 49. However, Makin posits that Maine's funding program is still constitutionally permissible to the extent that the Establishment Clause could be implicated. Id. at 50. Makin concludes that the tuition assistance program would survive an Establishment Clause challenge because ultimately the program ensures that children who are unable to attend public school still have access to an equivalent secular education without cost. Id.


Carson posits that Maine’s tuition program exclusion implicates the Equal Protection Clause because the state’s program makes religious-based distinctions. Brief for Petitioners, Carson at 51. Moreover, Carson notes that because religious distinctions are “inherently suspect,” the First Circuit should have analyzed Maine’s tuition-assistance program under strict scrutiny analysis rather than rational-basis review. Id. Carson argues that a strict scrutiny analysis is warranted because the “fundamental liberty interest” of parents in deciding their children’s educational futures is at stake. Id. at 52.

However, Carson also contends that Maine’s tuition program exclusion is constitutionally defective even under a rational-basis review. Id. at 54. Carson highlights that laws that make it difficult for a particular class of individuals, as compared to the general population, to access government aid violate the Equal Protection Clause. Id. at 55. Carson stresses that Maine’s tuition program pointedly targets families who want to send their children to private religious schools and makes government aid inaccessible to them. Id. Carson concludes that even looking at Maine’s program through a rational-basis lens, religious families who want to send their children to private religious schools are denied equal protection “in the most literal sense.” Id.

Makin counters that Maine’s tuition program is non-discriminatory because the government benefit at issue is not a child’s access to an education of her parents’ choice but rather a child’s access to free public education. Brief for Respondent, Makin at 45. Makin asserts that the Equal Protection Clause is not violated because parents are not being treated differently based on their faith. Id. Makin stresses that children of religious parents are not denied access to public education or the tuition-funding program itself—they are only denied public funds for private religious instruction. Id. at 46.

Makin asserts that the parents’ liberty rights are not at issue because the parents have the right to send their children to the schools of their choice, but they do not have the right to do so with public funds. Id. Moreover, Makin stresses that Maine’s program survives rational-basis review because a state government has a crucial supervisory role in ensuring that students receive an adequate public education. Id. at 47. Makin highlights that Maine’s funding policy is rational because the state cannot monitor religious teaching. Id. Therefore, Makin concludes the state should not dole out public funds for educational instruction over which it has no supervisory power. Id.



The World Faith Foundation and Institute for Faith and Family (collectively “World Faith Foundation”), in support of Carson, assert that by allowing the state to disqualify sectarian schools, Maine’s nonsectarian requirement excessively entangles the state in religion, thus infringing on religious freedom. Brief of Amici Curiae World Faith Foundation, in Support of Petitioners at 10. Consequently, the World Faith Foundation maintains that allowing parents to make a private choice of schools promotes neutrality without government endorsement. Id. at 14.

Moreover, the Christian Legal Society and other religious organizations (“Christian Legal Society”), in support of Carson, argue that the Supreme Court's decision in this case could impact more than just school funding, allowing states to deny funding to religious organizations that provide other government benefits. Brief of Amici Curiae Christian Legal Society et al.., in Support of Petitioner at 27. For example, Christian Legal Society et al. contend that Makin’s reading of the First Amendment would allow state governments to deny generally-available funding to religious providers of outpatient mental-health services and substance abuse services, religious higher-education institutions, and religious childcare providers. Id. at 26-27.

The American Atheists, in support of Makin, counter that Carson’s interpretation would lead to discrimination against atheist students and their families by diverting funding from atheistic or less widely accepted theistic schools to “larger, wealthier [religious] sects.” Brief of Amicus Curiae American Atheists, in Support of Respondent at 20. In support of this argument, American Atheists point to harassment and stigmatization experienced by atheist youths—negative treatment that has resulted in almost half of atheists at some point concealing their beliefs at school. Id. at 20–21.

Similarly, a group of religious and civil-rights organizations (“Religious and Civil-Rights Organizations”), in support of Makin, posit that to find Maine’s program unconstitutional would undermine Maine’s “antiestablishment [sic] interest” in protecting taxpayers from funding religious activity. Brief of Amici Curiae Religious and Civil-Rights Organizations, in Support of Respondent at 9. Religious and Civil-Rights Organizations further urge that Maine's nonsectarian requirement strikes the correct balance between the state action permitted by the First Amendment’s Establishment Clause, but not required by the Free Exercise Clause. Id.


The Liberty Justice Center et al. (“Liberty Justice Center”), in support of Carson, argue that restricting public funding to non-sectarian schools negatively impacts marginalized students, such as students with physical or intellectual needs, victims of bullying, religious minorities, tribal students, and children in single-sex schools. Brief of Amici Curiae Liberty Justice Center et al., in Support of Petitioners at 4, 6–12. The Liberty Justice Center contend that the ability to attend a private religious school can drastically improve outcomes for these students struggling in the public schooling system. Id.

Similarly, the Independent Women’s Law Center and the Independent Women’s Forum (collectively “IWLC”), in support of Carson, emphasize the important historical role that religious, single-sex education has historically played in educating women. Brief of Amici Curiae IWLC, in Support of Petitioners at 5. In support of its argument, IWLC notes research on girls-only classrooms that demonstrates more positive outcomes “compared to coeducated [sic] peers,” such as “greater cultural competency,” “greater leadership skills,” “higher self-confidence” and “amplified academic achievement.” Id. at 6, 7.

The Advancement Project et al. (“Advancement Project”), in support of Makin, counter that requiring Maine to fund religious education would subject marginalized students to “state-sponsored discrimination.” Brief of Amici Curiae Advancement Project et al., in Support of Respondent at 17. The Advancement Project emphasize the discriminatory foundations of “segregation academies” post-Brown v. Board of Education and of boarding schools that neglected and abused Native American children. Id. at 18–20. The Advancement Project further assert that religious schools continue to have discriminatory admissions and hiring policies. Id. at 17–20.

Furthermore, the National School Boards Association et al. (“NSBA”), in support of Makin, urge the Court to reject Carson’s interpretation because it would undermine national support of public education. Brief of Amici Curiae NSBA et al., in support of Respondent at 22. To support this contention, NSBA. asserts that the expansion of voucher and school “choice” programs has exacerbated inequality and decreased uniformity in public education. Id. at 23–24.



The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.