What Will the Supreme Court’s “Carson v. Makin” Decision Mean for Public Schools, School Vouchers, Charter Schools, and Religious Liberty?

Last Tuesday, the U.S. Supreme Court released a decision in Carson v. Makin, a Maine, First Amendment case about the entanglement of religion and government funding for schools.  For the 6-3 conservative Court majority, Chief Justice John Roberts wrote that if Maine pays for private schooling in remote towns so small they lack a public high school, private religious schools that teach about and promote religion—and even those schools that discriminate against gay students based on the schools’ religious tenets—cannot be denied the publicly funded vouchers.

In a recent article, Kevin Welner, director of the National Education Policy Center at the University of Colorado, explains why the Carson v. Makin, church-state case seems so complicated and confusing: “The First Amendment prohibits laws ‘respecting an establishment of religion, or prohibiting the free exercise thereof.’ These two religion clauses have long existed in tension and in a balance. The Free Exercise Clause protects individuals’ right to practice their religion as they please, while the Establishment Clause keeps the government from (at least in some circumstances) favoring or disfavoring religion or religious institutions. But that balance has perished. A well-orchestrated push to lift the Amendment’s Free Exercise Clause above its Establishment Clause has seen a level of success enjoyed by few other legal-advocacy efforts.”

The specific issue tested in Carson v. Makin differs from a 2020 decision in Espinoza v. Montana, in which the U.S. Supreme Court found that, under the First Amendment’s Free Exercise Clause, the state could not discriminate against a school based on its religious status. Carson v. Makin is about the school’s practice—the explicit teaching of religion, which the state of Maine has prohibited. Both cases were litigated by a far-right law firm, the Institute for Justice, which has supported plaintiffs in a series of cases with the goal of expanding, step by step, the use of publicly funded school vouchers for religious schools.

The Washington Post‘s Robert Barnes explains the meaning of last week’s decision in Carson v. Makin: “Roberts was joined by fellow conservative Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett. The decision was an example of how Roberts prefers to move the law incrementally in a conservative direction. In 2017, he wrote the opinion that said a state could not exclude a church playground from a program that provided funding for safety measures. In 2020, he wrote for the majority that a Montana program that provided tax credits to donors who sponsored scholarships for private school tuition must be open to private religious schools as well. ‘A state need not subsidize private education,’ he wrote: ‘But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.’  Roberts wrote in Tuesday’s ruling, ‘Maine’s decision to continue excluding religious schools from its tuition assistance program… promotes stricter separation of church and state than the Federal Constitution requires.'”

In a dissenting opinion, Justice Sonia Sotomayor declared: “Today, the court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.”

Lots of people seem to share Justice Sotomayor’s concern.  In a statement from the Education Law Center, Jessica Levin, senior attorney and director of the Public Funds Public Schools campaign explains: “Under a wealth of Supreme Court precedent, beginning with San Antonio Independent School District v. Rodriguez in 1973, Maine is well within its rights to limit the tuition program to private schools that meet the carefully designed criteria for providing a publicly funded education, including the requirement that these schools cannot provide a religious curriculum.”

The Southern Poverty Law Center’s interim deputy legal director, Bacardi Jackson adds: “What’s especially concerning about the prospect of diverting funds to religious schools is that these schools can and do discriminate against students, parents and educators… The private schools in this case have threatened expulsion of LGBTQ+ students and have reportedly suggested students undergo harmful conversion therapy. We have also seen far too many cases of educators losing their jobs because of their sexual orientation or gender identity. So what’s really at issue is the public funding of discrimination.”

Education historian, Diane Ravitch responds to Chief Justice Roberts’ contention that the idea of separation of church and state originated in discrimination—in what he says were the 19th century anti-Catholic Blaine Amendments to many of the state constitutions: “The Court is right that there was a strong anti-Catholic bias in American society throughout the nineteenth century. The so-called Blaine amendments found in many state constitutions were animated in large part by a desire to block public funding of Catholic schools. As I showed in my book, The Great School Wars, a history of the New York City schools, the Catholic Church eagerly sought public funding in the 1840s. But the ban on funding religious schools that has been in place nationally for more than a century applied to all religious schools, not just to Catholic schools. Schools run by Protestants, Catholics, Jews, Muslims, and other religious faiths were ineligible for public funding. This view was reinforced repeatedly by the Supreme Court in numerous rulings. The common understanding, upheld by the Court, was that public funds should not be used to indoctrinate students into the belief system of any religious faith. Public schools exist to promote public purposes: literacy and judgment needed to vote, to serve on juries, to participate in civic life, to sustain a democratic polity. Religious schools exist to teach and perpetuate—and yes, to indoctrinate—the faith of adherents.”

Religious advocates for the freedom to worship without constraint strongly oppose the Court’s decision in Carson v. Makin. General Counsel for the Baptist Joint Committee for Religious Liberty, Holly Hollman critciizes the decision: “The Court’s decision to require Maine to fund religious instruction threatens our nation’s commitment to religious freedom and the understanding of church-state separation that protects it. A majority of justices on the Supreme Court keep ignoring the distinctive role of religion in law and society, which is best served by separating the institutions of religion and government.”

The President and C.E.O of Americans United for Separation of Church and State, Rachel Laser declares: “The court’s ultra-conservative bloc argued that refusing to tax citizens to fund religion is ‘discrimination against religion.’ It’s nothing less than gaslighting to cloak this assault on our Constitution in the language of non-discrimination. If the conservative justices were concerned with discrimination, they would not have issued this opinion because it forces taxpayers to fund to religious schools that discriminate against LGBTQ families, one barring their admission and the other forcing them to undergo ‘counseling’ and renounce their sexual orientation or gender identity, or be expelled. One school’s stated education objective is to ‘refute the teachings of the Islamic religion with the truth of God’s word’—and now Muslim taxpayers will be forced to fund that school…  Americans United is committed to defending true religious freedom and public education from the assault mounted by religious extremists.”

In an analysis that explores a number of the legal technicalities in last week’s decision, the National Education Policy Center’s Kevin Welner emphasizes one major development that is likely to arise as a result of Carson v. Makin: “(S)tates will probably be forced to let churches and other religious institutions apply for charters and operate charter schools. That is, religious status probably cannot be penalized in the process of opening up new charter schools… We are left… with a situation where we can expect litigation involving whether charters can be granted to churches, and we can expect to see such charters in the near future. We can then expect to see litigation around whether those church-run charters can successfully assert their Free Exercise rights in an attempt to run the school without restrictions on proselytizing and religiously motivated discrimination.”

For supporters of public education, VOX‘s Ian Millhiser offers one reassuring element of Chief Justice Roberts’ majority opinion in Carson v. Makin: “Traditional public schools probably are not endangered by Carson. The one silver lining in Carson, for anyone who cares about the separation of church and state, is that Roberts’s opinion explicitly preserves the government’s ability to operate traditional public schools that offer an entirely secular education… This suggests that a state may provide a public education in which it comprehensively regulates what is taught, how students are assessed, and who is  allowed to teach.  And the state may offer such a public education to the exclusion of all other education benefits—that is, a state may tell families that if they want a state-funded education, their children must attend a secular public school.”

Millhiser also identifies precisely what Carson v. Makin will change: “But if a state does subsidize private education that is not comprehensively regulated by the state, then these subsidies must be available to religious schools—even if those schools seek to indoctrinate students into religious beliefs that many residents of the state find abhorrent.”

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