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Why the Supreme Court got it right in Maine voucher case

The 6-3 decision in Carson v. Makin is an important victory for the constitutional principle that government may not discriminate on the basis of religion.
Bangor Christian School in Bangor, Maine.
Bangor Christian School in Bangor, Maine. The school is at the center of the Supreme Court case decided Tuesday.Google Maps

On Tuesday, the Supreme Court struck down a Maine law that excluded most religious private schools from a voucher program that is in place in similar secular schools. The 6-3 decision in Carson v. Makin is an important victory for the constitutional principle that government may not discriminate on the basis of religion. It may also help open up valuable opportunities for parents and students, particularly the disadvantaged.

In 2020, the Supreme Court ruled in Espinoza v. Montana Department of Revenue that a state-run voucher program may not exclude religious schools simply because of their “status” as religious institutions. As Chief Justice John Roberts reiterated in his opinion for the court Tuesday, a state may not “withhold otherwise available public benefits from religious organizations” simply because they are religious.

In his dissenting opinion, Breyer argues that the majority opinion in Carson might promote “religious strife.” But it can actually reduce such conflict.

Roberts also noted that discrimination on the basis of religion presumptively violates the clause protecting the free exercise of religion in the First Amendment, and can only pass judicial scrutiny — i.e. be deemed constitutional — if it ad­vances “interests of the highest order” and is “narrowly tailored in pursuit of those interests.” For example, it would surely be unconstitutional for a state to give welfare benefits to Christians while denying them to otherwise eligible secularists. While the state can choose not to establish welfare programs in the first place, if it does establish them, the beneficiaries can’t be discriminated against based on religion. The same logic applies to tuition vouchers. 

Until now, the state of Maine has subsidized the cost of private schools providing the equivalent of a secular public school curriculum for the roughly 5,000 children who live in districts (school administrative units, in Maine parlance) too sparsely populated to support their own public school. However, Maine refuses to subsidize attendance at private schools with a religious curriculum in these areas, even if they have otherwise met all applicable state laws.

Defenders of the Maine voucher program, including Justice Stephen Breyer in his dissenting opinion, claimed this was not a case of religious discrimination because the program did not exclude religiously affiliated schools as such, but rather only those that are “sectarian” — which the state Department of Education defined as an institution that, “in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”

This legal theory is known as the “status-use” distinction. It holds that, while the government may not discriminate against institutions based on their religious “status,” it can do so based on potential “religious use” of the resources the state might extend to them.

This distinction makes little sense, especially when it comes to schools, and the court was right to reject it. The First Amendment clearly protects not merely religious belief and religious affiliation but also the “free exercise” of religion (emphasis added). The word “exercise” suggests that people must be free to act on their faith — including by trying to promote it. As a practical matter, almost any religious school worthy of the name is going to promote “the faith or belief system with which it is associated” at least to some extent. 

The flaws of the “status-use” distinction become clear if we consider what it would mean in other contexts. Thus, if the state had adopted a law that extends welfare benefits to adherents of all religions but denies it to those who might “use” some of the money to “promote” their faith, pretty much any court would strike down that as unconstitutional discrimination on the basis of religion (especially if recipients remained free to “use” the funds to promote secular causes). The same logic applies here.

Breyer’s dissent contends that the state is merely ensuring that participating private schools offer the equivalent of a public education. But, as Roberts notes, Maine’s program allows participating private schools to differ from public ones in numerous ways, including having widely divergent curricula. Only “sectarian” schools are systematically excluded.

Under Tuesday’s decision, the state remains free to restrict vouchers to schools that fail to meet  curricular standards that apply equally to both religious and secular schools — even if those standards go against the beliefs of some of them. For example, it might require recipient schools to teach students the theory of evolution despite the fact that some religious groups reject it. It could also bar funding to schools that discriminate on the basis of race, sex and sexual orientation, even though some faith traditions advocate those practices.

Some argue that any public aid to religious schools violates a different part of the First Amendment — the establishment clause, which prohibits the state from creating an “established” church. But nondiscrimination between religious and secular institutions in no way privileges any particular faith, nor does it imply state endorsement of any denomination’s religious beliefs or coercion to adhere to a certain faith. Parents who do not want their children to attend a religious school can simply choose a secular option. 

The conservative majority on the Supreme Court hasn’t always consistently supported the principle of religious nondiscrimination. Most egregiously, it upheld President Donald Trump’s “travel ban” policy targeting migrants and refugees from Muslim countries on the theory that nondiscrimination constraints don’t apply to immigration restrictions to the same extent as other policies. But the right way to deal with that inconsistency is to end constitutional double standards in immigration policy, not to allow discriminatory policies elsewhere.

In addition to vindicating an important constitutional principle, Carson v. Makin is a potential boon to poor and disadvantaged children. Social science research indicates that the private school choice is often especially valuable to poor and minority children, and that some religious schools — notably Catholic schools — are particularly adept at improving the performance of disadvantaged students. You don’t have to endorse the religious doctrines of these schools (as an atheist, I myself do not) to recognize the valuable opportunities they offer.

The ruling also offers an opportunity to transcend today’s increasingly divisive culture wars over education. In his dissenting opinion, Breyer argues that the majority opinion in Carson might promote “religious strife.” But it can actually reduce such conflict. Both red and blue states increasingly seek to impose one-size-fits-all state-sponsored dogma through their public education systems. School choice that includes a wide range of religious and secular options allows dissenters to go their own way and creates valuable competition that parents can take advantage of. Tuesday’s Supreme Court decision will help promote such beneficial diversity and competition.