Carson v. Makin ( 2022 )

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
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
2 CARSON v. MAKIN
Syllabus
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
Cite as: 596 U. S. ____ (2022) 3
Syllabus
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
4 CARSON v. MAKIN
Syllabus
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 dissent-
ing opinion.
Cite as: 596 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1088
_________________
DAVID CARSON, AS PARENT AND NEXT FRIEND OF O. C.,
ET AL., PETITIONERS v. A. PENDER MAKIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 21, 2022]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Maine has enacted a program of tuition assistance for
parents who live in school districts that do not operate a
secondary school of their own. Under the program, parents
designate the secondary school they would like their child
to attend—public or private—and the school district trans-
mits payments to that school to help defray the costs of tu-
ition. Most private schools are eligible to receive the pay-
ments, so long as they are “nonsectarian.” The question
presented is whether this restriction violates the Free Ex-
ercise Clause of the First Amendment.
I
A
Maine’s Constitution provides that the State’s legislature
shall “require . . . the several towns to make suitable provi-
sion, at their own expense, for the support and maintenance
of public schools.” Me. Const., Art. VIII, pt. 1, §1. In ac-
cordance with that command, the legislature has required
that every school-age child in Maine “shall be provided an
2 CARSON v. MAKIN
Opinion of the Court
opportunity to receive the benefits of a free public educa-
tion,” Me. Rev. Stat. Ann., Tit. 20–A, §2(1) (2008), and that
the required schools be operated by “the legislative and gov-
erning bodies of local school administrative units,” §2(2).
But Maine is the most rural State in the Union, and for
many school districts the realities of remote geography and
low population density make those commands difficult to
heed. Indeed, of Maine’s 260 school administrative units
(SAUs), fewer than half operate a public secondary school
of their own. App. 4, 70, 73.
Maine has sought to deal with this problem in part by
creating a program of tuition assistance for families that
reside in such areas. Under that program, if an SAU nei-
ther operates its own public secondary school nor contracts
with a particular public or private school for the education
of its school-age children, the SAU must “pay the tuition . . .
at the public school or the approved private school of the
parent’s choice at which the student is accepted.” Me. Rev.
Stat. Ann., Tit. 20–A, §5204(4) (Cum. Supp. 2021). Parents
who wish to take advantage of this benefit first select the
school they wish their child to attend. Ibid. If they select a
private school that has been “approved” by the Maine De-
partment of Education, the parents’ SAU “shall pay the tu-
ition” at the chosen school up to a specified maximum rate.
See §§2902, 2951, 5204(4).
To be “approved” to receive these payments, a private
school must meet certain basic requirements under Maine’s
compulsory education law. §2951(1). The school must ei-
ther be “[c]urrently accredited by a New England associa-
tion of schools and colleges” or separately “approv[ed] for
attendance purposes” by the Department. §§2901(2), 2902.
Schools seeking approval from the Department must meet
specified curricular requirements, such as using English as
the language of instruction, offering a course in “Maine his-
tory, including the Constitution of Maine . . . and Maine’s
cultural and ethnic heritage,” and maintaining a student-
Cite as: 596 U. S. ____ (2022) 3
Opinion of the Court
teacher ratio of not more than 30 to 1. §§2902(2), 2902(3),
4706(2), 2902(6)(C).
The program imposes no geographic limitation: Parents
may direct tuition payments to schools inside or outside the
State, or even in foreign countries. §§2951(3), 5808. In
schools that qualify for the program because they are ac-
credited, teachers need not be certified by the State,
§13003(3), and Maine’s curricular requirements do not ap-
ply, §2901(2). Single-sex schools are eligible. See Me. Rev.
Stat. Ann., Tit. 5, §4553(2–A) (exempting single-sex pri-
vate, but not public, schools from Maine’s antidiscrimina-
tion law).
Prior to 1981, parents could also direct the tuition assis-
tance payments to religious schools. Indeed, in the 1979–
1980 school year, over 200 Maine students opted to attend
such schools through the tuition assistance program. App.
72. In 1981, however, Maine imposed a new requirement
that any school receiving tuition assistance payments must
be “a nonsectarian school in accordance with the First
Amendment of the United States Constitution.” Me. Rev.
Stat. Ann., Tit. 20–A, §2951(2). That provision was enacted
in response to an opinion by the Maine attorney general
taking the position that public funding of private religious
schools violated the Establishment Clause of the First
Amendment. We subsequently held, however, that a bene-
fit program under which private citizens “direct govern-
ment aid to religious schools wholly as a result of their own
genuine and independent private choice” does not offend
the Establishment Clause. Zelman v. Simmons-Harris, 536
U. S. 639, 652 (2002). Following our decision in Zelman,
the Maine Legislature considered a proposed bill to repeal
the “nonsectarian” requirement, but rejected it. App. 100,
108.
The “nonsectarian” requirement for participation in
Maine’s tuition assistance program remains in effect today.
4 CARSON v. MAKIN
Opinion of the Court
The Department has stated that, in administering this re-
quirement, it “considers a sectarian school to be one that is
associated with a particular faith or belief system and
which, 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.”
979 F. 3d 21, 38 (CA1 2020). “The Department’s focus is on
what the school teaches through its curriculum and related
activities, and how the material is presented.” Ibid. (em-
phasis deleted). “[A]ffiliation or association with a church
or religious institution is one potential indicator of a sec-
tarian school,” but “it is not dispositive.” Ibid.B
This case concerns two families that live in SAUs that
neither maintain their own secondary schools nor contract
with any nearby secondary school. App. 70, 71. Petitioners
David and Amy Carson reside in Glenburn, Maine. Id., at
74. When this litigation commenced, the Carsons’ daughter
attended high school at Bangor Christian Schools (BCS),
which was founded in 1970 as a ministry of Bangor Baptist
Church. Id., at 74, 80. The Carsons sent their daughter to
BCS because of the school’s high academic standards and
because the school’s Christian worldview aligns with their
sincerely held religious beliefs. Id., at 74. Given that BCS
is a “sectarian” school that cannot qualify for tuition assis-
tance payments under Maine’s program, id., at 80, the Car-
sons paid the tuition for their daughter to attend BCS
themselves, id., at 74.
Petitioners Troy and Angela Nelson live in Palermo,
Maine. Id., at 78. When this litigation commenced, the
Nelsons’ daughter attended high school at Erskine Acad-
emy, a secular private school, and their son attended mid-
dle school at Temple Academy, a “sectarian” school affili-
ated with Centerpoint Community Church. Id., at 78, 90,
91. The Nelsons sent their son to Temple Academy because
Cite as: 596 U. S. ____ (2022) 5
Opinion of the Court
they believed it offered him a high-quality education that
aligned with their sincerely held religious beliefs. Id., at
78. While they wished to send their daughter to Temple
Academy too, they could not afford to pay the cost of the
Academy’s tuition for both of their children. Id., at 79.
BCS and Temple Academy are both accredited by the
New England Association of Schools and Colleges (NEASC),
and the Department considers each school a “private school
approved for attendance purposes” under the State’s com-
pulsory attendance requirement. Id., at 80, 90. Yet because
neither school qualifies as “nonsectarian,” neither is eligible
to receive tuition payments under Maine’s tuition assis-
tance program. Id., at 80, 90. Absent the “nonsectarian”
requirement, the Carsons and the Nelsons would have
asked their respective SAUs to pay the tuition to send their
children to BCS and Temple Academy, respectively. Id., at
79.
In 2018, petitioners brought suit against the commis-
sioner of the Maine Department of Education. Id., at 11–
12. They alleged that the “nonsectarian” requirement of
Maine’s tuition assistance program violated the Free Exer-
cise Clause and the Establishment Clause of the First
Amendment, id., at 23–27, as well as the Equal Protection
Clause of the Fourteenth Amendment, id., at 29–30. Their
complaint sought declaratory and injunctive relief against
enforcement of the requirement. Id., at 31–32. The parties
filed cross-motions for summary judgment on a stipulated
record. 401 F. Supp. 3d 207, 208 (Me. 2019). Applying Cir-
cuit precedent that had previously upheld the “nonsec-
tarian” requirement against challenge, see Eulitt v. Maine
Dept. of Ed., 386 F. 3d 344 (CA1 2004), the District Court
rejected petitioners’ constitutional claims and granted judg-
ment to the commissioner. 401 F. Supp. 3d, at 209–212.
While petitioners’ appeal to the First Circuit was pend-
ing, this Court decided Espinoza v. Montana Department of
6 CARSON v. MAKIN
Opinion of the Court
Revenue, 591 U. S. ___ (2020). Espinoza held that a provi-
sion of the Montana Constitution barring government aid
to any school “controlled in whole or in part by any church,
sect, or denomination,” Art. X, §6(1), violated the Free Ex-
ercise Clause by prohibiting families from using otherwise
available scholarship funds at the religious schools of their
choosing. The First Circuit recognized that, in light of Es-
pinoza, its prior precedent upholding Maine’s “nonsec-
tarian” requirement was no longer controlling. 979 F. 3d,
at 32–36. But it nevertheless affirmed the District Court’s
grant of judgment to the commissioner. Id., at 49.
As relevant here, the First Circuit offered two grounds to
distinguish Maine’s “nonsectarian” requirement from the
no-aid provision at issue in Espinoza. First, the panel rea-
soned that, whereas Montana had barred schools from re-
ceiving funding “simply based on their religious identity—
a status that in and of itself does not determine how a school
would use the funds”—Maine bars BCS and Temple Acad-
emy from receiving funding “based on the religious use that
they would make of it in instructing children.” 979 F. 3d,
at 40. Second, the panel determined that Maine’s tuition
assistance program was distinct from the scholarships at
issue in Espinoza because Maine had sought to provide “a
rough equivalent of the public school education that Maine
may permissibly require to be secular but that is not other-
wise accessible.” 979 F. 3d, at 44. Thus, “the nature of the
restriction at issue and the nature of the school aid program
of which it is a key part” led the panel to conclude “once
again” that Maine’s “nonsectarian” requirement did not vi-
olate the Free Exercise Clause. Id., at 46.
We granted certiorari. 594 U. S. ___ (2021).
II
A
The Free Exercise Clause of the First Amendment pro-
Cite as: 596 U. S. ____ (2022) 7
Opinion of the Court
tects against “indirect coercion or penalties on the free ex-
ercise of religion, not just outright prohibitions.” Lyng v.
Northwest Indian Cemetery Protective Assn., 485 U. S. 439,
450 (1988). In particular, we have repeatedly held that a
State violates the Free Exercise Clause when it excludes
religious observers from otherwise available public bene-
fits. See Sherbert v. Verner, 374 U. S. 398, 404 (1963) (“It
is too late in the day to doubt that the liberties of religion
and expression may be infringed by the denial of or placing
of conditions upon a benefit or privilege.”); see also Everson
v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947) (a State
“cannot exclude” individuals “because of their faith, or lack
of it, from receiving the benefits of public welfare legisla-
tion”). A State may not withhold unemployment benefits,
for instance, on the ground that an individual lost his job
for refusing to abandon the dictates of his faith. See Sher-
bert, 374 U. S., at 399–402 (Seventh-day Adventist who re-
fused to work on the Sabbath); Thomas v. Review Bd. of Ind.
Employment Security Div., 450 U. S. 707, 709, 720 (1981)
(Jehovah’s Witness who refused to participate in the pro-
duction of armaments).
We have recently applied these principles in the context
of two state efforts to withhold otherwise available public
benefits from religious organizations. In Trinity Lutheran
Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017), we
considered a Missouri program that offered grants to qual-
ifying nonprofit organizations that installed cushioning
playground surfaces made from recycled rubber tires. The
Missouri Department of Natural Resources maintained an
express policy of denying such grants to any applicant
owned or controlled by a church, sect, or other religious en-
tity. The Trinity Lutheran Church Child Learning Center
applied for a grant to resurface its gravel playground, but
the Department denied funding on the ground that the Cen-
ter was operated by the Church.
8 CARSON v. MAKIN
Opinion of the Court
We deemed it “unremarkable in light of our prior deci-
sions” to conclude that the Free Exercise Clause did not per-
mit Missouri to “expressly discriminate[ ] against otherwise
eligible recipients by disqualifying them from a public ben-
efit solely because of their religious character.” Id., at ___–
___ (slip op., at 9–10). While it was true that Trinity Lu-
theran remained “free to continue operating as a church,” it
could enjoy that freedom only “at the cost of automatic and
absolute exclusion from the benefits of a public program for
which the Center [was] otherwise fully qualified.” Id., at
___ (slip op., at 10) (citing McDaniel v. Paty, 435 U. S. 618,
626 (1978) (plurality opinion)). Such discrimination, we
said, was “odious to our Constitution” and could not stand.
582 U. S., at ___ (slip op., at 15).
Two Terms ago, in Espinoza, we reached the same con-
clusion as to a Montana program that provided tax credits
to donors who sponsored scholarships for private school tu-
ition. The Montana Supreme Court held that the program,
to the extent it included religious schools, violated a provi-
sion of the Montana Constitution that barred government
aid to any school controlled in whole or in part by a church,
sect, or denomination. As a result of that holding, the State
terminated the scholarship program, preventing the peti-
tioners from accessing scholarship funds they otherwise
would have used to fund their children’s educations at reli-
gious schools.
We again held that the Free Exercise Clause forbade the
State’s action. The application of the Montana Constitu-
tion’s no-aid provision, we explained, required strict scru-
tiny because it “bar[red] religious schools from public bene-
fits solely because of the religious character of the schools.”
Espinoza, 591 U. S., at ___ (slip op., at 9). “A State need not
subsidize private education,” we concluded, “[b]ut once a
State decides to do so, it cannot disqualify some private
schools solely because they are religious.” Id., at ___ (slip
op., at 20).
Cite as: 596 U. S. ____ (2022) 9
Opinion of the Court
B
The “unremarkable” principles applied in Trinity Lu-
theran and Espinoza suffice to resolve this case. Maine of-
fers its citizens a benefit: tuition assistance payments for
any family whose school district does not provide a public
secondary school. Just like the wide range of nonprofit or-
ganizations 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 Trinity Lutheran, BCS
and Temple Academy are disqualified from this generally
available benefit “solely because of their religious charac-
ter.” 582 U. S., at ___ (slip op., at 10). By “condition[ing]
the availability of benefits” in that manner, Maine’s tuition
assistance program—like the program in Trinity Lu-
theran—“effectively penalizes the free exercise” of religion.
Ibid. (quoting McDaniel, 435 U. S., at 626 (plurality opin-
ion)).
Our recent decision in Espinoza applied these basic prin-
ciples in the context of religious education that we consider
today. There, as here, we considered a state benefit pro-
gram under which public funds flowed to support tuition
payments at private schools. And there, as here, that pro-
gram specifically carved out private religious schools from
those eligible to receive such funds. While the wording of
the Montana and Maine provisions is different, their effect
is the same: to “disqualify some private schools” from fund-
ing “solely because they are religious.” 591 U. S., at ___
(slip op., at 20). A law that operates in that manner, we
held in Espinoza, must be subjected to “the strictest scru-
tiny.” Id., at ___–___ (slip op., at 11–12).
To satisfy strict scrutiny, government action “must ad-
vance ‘interests of the highest order’ and must be narrowly
tailored in pursuit of those interests.” Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993) (quot-
ing McDaniel, 435 U. S., at 628 (plurality opinion)). “A law
10 CARSON v. MAKIN
Opinion of the Court
that targets religious conduct for distinctive treatment . . .
will survive strict scrutiny only in rare cases.” 508 U. S., at
546.
This is not one of them. As noted, a neutral benefit pro-
gram in which public funds flow to religious organizations
through the independent choices of private benefit recipi-
ents does not offend the Establishment Clause. See Zel-
man, 536 U. S., at 652–653. Maine’s decision to continue
excluding religious schools from its tuition assistance pro-
gram after Zelman thus promotes stricter separation of
church and state than the Federal Constitution requires.
See also post, at 4 (BREYER, J., dissenting) (States may
choose “not to fund certain religious activity . . . even when
the Establishment Clause does not itself prohibit the State
from funding that activity”); post, at 1 (SOTOMAYOR, J., dis-
senting) (same point).
But as we explained in both Trinity Lutheran and Espi-
noza, such an “interest in separating church and state ‘more
fiercely’ than the Federal Constitution . . . ‘cannot qualify
as compelling’ in the face of the infringement of free exer-
cise.” Espinoza, 591 U. S., at ___ (slip op., at 18) (quoting
Trinity Lutheran, 582 U. S., at ___ (slip op., at 14)); see also
Widmar v. Vincent, 454 U. S. 263, 276 (1981) (“[T]he state
interest . . . in achieving greater separation of church and
State than is already ensured under the Establishment
Clause . . . is limited by the Free Exercise Clause.”).
JUSTICE BREYER stresses the importance of “government
neutrality” when it comes to religious matters, post, at 13,
but there is nothing neutral about Maine’s program. The
State pays tuition for certain students at private schools—
so long as the schools are not religious. That is discrimina-
tion against religion. A State’s antiestablishment interest
does not justify enactments that exclude some members of
Cite as: 596 U. S. ____ (2022) 11
Opinion of the Court
the community from an otherwise generally available pub-
lic benefit because of their religious exercise.*
III
The First Circuit attempted to distinguish our precedent
by recharacterizing the nature of Maine’s tuition assistance
program in two ways, both of which Maine echoes before
this Court. First, the panel defined the benefit at issue as
the “rough equivalent of [a Maine] public school education,”
an education that cannot include sectarian instruction. 979
F. 3d, at 44; see also Brief for Respondent 22. Second, the
panel defined the nature of the exclusion as one based not
on a school’s religious “status,” as in Trinity Lutheran and
Espinoza, but on religious “uses” of public funds. 979 F. 3d,
at 38–40; see also Brief for Respondent 35. Neither of these
formal distinctions suffices to distinguish this case from
Trinity Lutheran or Espinoza, or to affect the application of
the free exercise principles outlined above.
A
The First Circuit held that the “nonsectarian” require-
ment was constitutional because the benefit was properly
viewed not as tuition assistance payments to be used at ap-
proved private schools, but instead as funding for the
“rough equivalent of the public school education that Maine
may permissibly require to be secular.” 979 F. 3d, at 44. As
Maine puts it, “[t]he public benefit Maine is offering is a
free public education.” Brief for Respondent 1–2.
To start with, the statute does not say anything like that.
It says that an SAU without a secondary school of its own
——————
*Both dissents articulate a number of other reasons not to extend the
tuition assistance program to BCS and Temple Academy, based on the
schools’ particular policies and practices. Post, at 15–16 (opinion of
BREYER, J.); post, at 4 (opinion of SOTOMAYOR, J.). Maine rightly does not
attempt to defend its law on such grounds, however, because the law rig-
idly excludes any and all sectarian schools regardless of particular char-
acteristics. See supra, at 3.
12 CARSON v. MAKIN
Opinion of the Court
“shall pay the tuition . . . at the public school or the ap-
proved private school of the parent’s choice at which the
student is accepted.” Me. Rev. Stat. Ann., Tit. 20–A,
§5204(4). The benefit 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.
This reading of the statute is confirmed by the program’s
operation. The differences between private schools eligible
to receive tuition assistance under Maine’s program and a
Maine public school are numerous and important. To start
with the most obvious, private schools are different by def-
inition because they do not have to accept all students. Pub-
lic schools generally do. Second, the free public education
that Maine insists it is providing through the tuition assis-
tance program is often not free. That “assistance” is avail-
able at private schools that charge several times the maxi-
mum benefit that Maine is willing to provide. See
Stipulated Record, Exh. 2, in No. 1:18–cv–327 (Me., Mar.
12, 2019), ECF Doc. 24–2, p. 11; Brief for Respondent 32.
Moreover, the curriculum taught at participating private
schools need not even resemble that taught in the Maine
public schools. For example, Maine public schools must
abide by certain “parameters for essential instruction in
English language arts; mathematics; science and technol-
ogy; social studies; career and education development; vis-
ual and performing arts; health, physical education and
wellness; and world languages.” §6209. But NEASC-
accredited private schools are exempt from these require-
ments, and instead subject only to general “standards and
indicators” governing the implementation of their own cho-
sen curriculum. Brief for Respondent 32; see NEASC,
Standards—20/20 Process (rev. Aug. 2021), https://cis.
neasc.org/standards2020 (requiring, for instance, that
“[c]urriculum planning supports the school’s core beliefs
and the needs of the students,” and that the “[w]ritten cur-
riculum aligns horizontally and vertically”).
Cite as: 596 U. S. ____ (2022) 13
Opinion of the Court
Private schools approved by the Department (rather than
accredited by NEASC) are likewise exempt from many of
the State’s curricular requirements, so long as fewer than
60% of their students receive tuition assistance from the
State. For instance, such schools need not abide by Maine’s
“comprehensive, statewide system of learning results,” in-
cluding the “parameters for essential instruction” refer-
enced above, and they need not administer the annual state
assessments in English language arts, mathematics, and
science. §§2951(6), 6209; see also ECF Doc. 24–2, at 9.
There are other distinctions, too. Participating schools
need not hire state-certified teachers. Compare Me. Rev.
Stat. Ann., Tit. 20–A, §13003(1), with §13003(3). And the
schools can be single-sex. See ECF Doc. 24–2, at 11. In
short, it is simply not the case that these schools, to be eli-
gible for state funds, must offer an education that is equiv-
alent—roughly or otherwise—to that available in the Maine
public schools.
But the key manner in which the two educational experi-
ences are required to be “equivalent” is that they must both
be secular. Saying that Maine offers a benefit limited to
private secular education is just another way of saying that
Maine does not extend tuition assistance payments to par-
ents who choose to educate their children at religious
schools. But “the definition of a particular program can al-
ways be manipulated to subsume the challenged condition,”
and to allow States to “recast a condition on funding” in this
manner would be to see “the First Amendment . . . reduced
to a simple semantic exercise.” Agency for Int’l Development
v. Alliance for Open Society Int’l, Inc., 570 U. S. 205, 215
(2013) (quoting Legal Services Corporation v. Velazquez,
531 U. S. 533, 547 (2001)); see also Walz v. Tax Comm’n of
City of New York, 397 U. S. 664, 696 (1970) (Harlan, J., con-
curring) (“The Court must survey meticulously the circum-
stances of governmental categories to eliminate, as it were,
religious gerrymanders.”). Maine’s formulation does not
14 CARSON v. MAKIN
Opinion of the Court
answer the question in this case; it simply restates it.
Indeed, were we to accept Maine’s argument, our decision
in Espinoza would be rendered essentially meaningless. By
Maine’s logic, Montana could have obtained the same result
that we held violated the First Amendment simply by rede-
fining its tax credit for sponsors of generally available schol-
arships as limited to “tuition payments for the rough equiv-
alent of a Montana public education”—meaning a secular
education. But our holding in Espinoza turned on the sub-
stance of free exercise protections, not on the presence or
absence of magic words. That holding applies fully whether
the prohibited discrimination is in an express provision like
§2951(2) or in a party’s reconceptualization of the public
benefit.
Maine may provide a strictly secular education in its pub-
lic schools. But BCS and Temple Academy—like numerous
other recipients of Maine tuition assistance payments—are
not public schools. In order to provide an education to chil-
dren who live in certain parts of its far-flung State, Maine
has decided not to operate schools of its own, but instead 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 govern-
ing any such public benefit program—including the prohi-
bition on denying the benefit based on a recipient’s religious
exercise.
The dissents are wrong to say that under our decision to-
day Maine “must” fund religious education. Post, at 7
(BREYER, J., dissenting). Maine chose to allow some par-
ents to direct state tuition payments to private schools; that
decision was not “forced upon” it. Post, at 4 (SOTOMAYOR,
J., dissenting). The State retains a number of options: it
could expand the reach of its public school system, increase
the availability of transportation, provide some combina-
tion of tutoring, remote learning, and partial attendance, or
Cite as: 596 U. S. ____ (2022) 15
Opinion of the Court
even operate boarding schools of its own. As we held in Es-
pinoza, a “State need not subsidize private education. But
once a State decides to do so, it cannot disqualify some pri-
vate schools solely because they are religious.” 591 U. S.,
at ___ (slip op., at 20).
B
The Court of Appeals also attempted to distinguish this
case from Trinity Lutheran and Espinoza on the ground
that the funding restrictions in those cases were “solely sta-
tus-based religious discrimination,” while the challenged
provision here “imposes a use-based restriction.” 979 F. 3d,
at 35, 37–38. JUSTICE BREYER makes the same argument.
Post, at 8–9, 13–14 (dissenting opinion).
In Trinity Lutheran, the Missouri Constitution banned
the use of public funds in aid of “any church, sect or denom-
ination of religion.” 582 U. S., at ___–___ (slip op., at 2–3).
We noted that the case involved “express discrimination
based on religious identity,” which was sufficient unto the
day in deciding it, and that our opinion did “not address re-
ligious uses of funding.” Id., at ___, n. 3 (plurality opinion)
(slip op., at 14, n. 3).
So too in Espinoza, the discrimination at issue was de-
scribed by the Montana Supreme Court as a prohibition on
aiding “schools controlled by churches,” and we analyzed
the issue in terms of “religious status and not religious use.”
591 U. S., at ___ (slip op., at 10). Foreshadowing Maine’s
argument here, Montana argued that its case was different
from Trinity Lutheran’s because it involved not playground
resurfacing, but general funds that “could be used for reli-
gious ends by some recipients, particularly schools that be-
lieve faith should ‘permeate[]’ everything they do.” Id., at
___ (slip op., at 11). We explained, however, that the strict
scrutiny triggered by status-based discrimination could not
be avoided by arguing that “one of its goals or effects [was]
16 CARSON v. MAKIN
Opinion of the Court
preventing religious organizations from putting aid to reli-
gious uses.” Ibid. (emphasis added). And we noted that
nothing in our analysis was “meant to suggest that we
agree[d] with [Montana] that some lesser degree of scrutiny
applies to discrimination against religious uses of govern-
ment aid.” Id., at ___ (slip op., at 12).
Maine’s argument, however—along with the decision be-
low and JUSTICE BREYER’s dissent—is premised on pre-
cisely such a distinction. See Brief for Respondent 44
(“Maine has not broadly excluded private schools simply be-
cause they are affiliated with or controlled by a religious
organization. Rather, a school is excluded only if it pro-
motes a particular faith and presents academic material
through the lens of that faith.”); 979 F. 3d, at 40 (Maine pro-
vision “does not bar schools from receiving funding simply
based on their religious identity” but instead “based on the
religious use that they would make of it in instructing chil-
dren.”); post, at 9 (BREYER, J., dissenting) (“[U]nlike the cir-
cumstances present in Trinity Lutheran and Espinoza, it is
religious activity, not religious labels, that lies at the heart
of this case.”).
That premise, however, misreads our precedents. In
Trinity Lutheran and Espinoza, we held that the Free Ex-
ercise 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 peo-
ple in their faith, inculcating its teachings, and training
them to live their faith are responsibilities 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.
___, ___ (2020) (slip op., at 18); see also Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC, 565
U. S. 171, 192 (2012).
Any attempt to give effect to such a distinction by scruti-
Cite as: 596 U. S. ____ (2022) 17
Opinion of the Court
nizing whether and how a religious school pursues its edu-
cational mission would also raise serious concerns about
state entanglement with religion and denominational fa-
voritism. See Our Lady, 591 U. S., at ___ (slip op., at 26);
Larson v. Valente, 456 U. S. 228, 244 (1982). Indeed, Maine
concedes that the Department barely engages in any such
scrutiny when enforcing the “nonsectarian” requirement.
See Brief for Respondent 5 (asserting that there will be no
need to probe private schools’ uses of tuition assistance
funds because “schools self-identify as nonsectarian” under
the program and the need for any further questioning is
“extremely rare”). That suggests that any status-use dis-
tinction lacks a meaningful application not only in theory,
but in practice as well. In short, the prohibition on status-
based discrimination under the Free Exercise Clause is not
a permission to engage in use-based discrimination.
Maine and the dissents invoke Locke v. Davey, 540 U. S.
712 (2004), in support of the argument that the State may
preclude parents from designating a religious school to re-
ceive tuition assistance payments. In that case, Washing-
ton had established a scholarship fund to assist academi-
cally gifted students with postsecondary education
expenses. But the program excluded one particular use of
the scholarship funds: the “essentially religious endeavor”
of pursuing a degree designed to “train[ ] a minister to lead
a congregation.” Id., at 721; Espinoza, 591 U. S., at ___ (slip
op., at 13). We upheld that restriction against a free exer-
cise challenge, reasoning that the State had “merely chosen
not to fund a distinct category of instruction.” Locke, 540
U. S., at 721.
Our opinions in Trinity Lutheran and Espinoza, however,
have already explained why Locke can be of no help to
Maine here. Both precedents emphasized, as did Locke it-
self, that the funding in Locke was intended to be used “to
prepare for the ministry.” Trinity Lutheran, 582 U. S., at
___ (slip op., at 12); see also Espinoza, 591 U. S., at ___ (slip
18 CARSON v. MAKIN
Opinion of the Court
op., at 13); Locke, 540 U. S., at 725. Funds could be and
were used for theology courses; only pursuing a “vocational
religious” degree was excluded. Ibid.; see also Trinity Lu-
theran, 582 U. S., at ___–___ (slip op., at 12–13) (explaining
narrow reach of Locke); Espinoza, 591 U. S., at ___–___ (slip
op., at 13–14) (same).
Locke’s reasoning expressly turned on what it identified
as the “historic and substantial state interest” against us-
ing “taxpayer funds to support church leaders.” 540 U. S.,
at 722, 725. But as we explained at length in Espinoza, “it
is clear that there is no ‘historic and substantial’ tradition
against aiding [private religious] schools comparable to the
tradition against state-supported clergy invoked by Locke.”
591 U. S., at ___ (slip op., at 16). Locke cannot be read be-
yond its narrow focus on vocational religious degrees to gen-
erally authorize the State to exclude religious persons from
the enjoyment of public benefits on the basis of their antic-
ipated religious use of the benefits.
* * *
Maine’s “nonsectarian” requirement for its otherwise
generally available tuition assistance payments violates
the Free Exercise Clause of the First Amendment. Regard-
less of how the benefit and restriction are described, the
program operates to identify and exclude otherwise eligible
schools on the basis of their religious exercise. The judg-
ment of the Court of Appeals is reversed, and the case is
remanded for further proceedings consistent with this opin-
ion.
It is so ordered.
Cite as: 596 U. S. ____ (2022) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1088
_________________
DAVID CARSON, AS PARENT AND NEXT FRIEND OF O. C.,
ET AL., PETITIONERS v. A. PENDER MAKIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 21, 2022]
JUSTICE BREYER, with whom JUSTICE KAGAN joins, and
with whom JUSTICE SOTOMAYOR joins except as to Part I–
B, dissenting.
The First Amendment begins by forbidding the govern-
ment from “mak[ing] [any] law respecting an establishment
of religion.” It next forbids them to make any law “prohib-
iting the free exercise thereof.” The Court today pays al-
most no attention to the words in the first Clause while giv-
ing almost exclusive attention to the words in the second.
The majority also fails to recognize the “ ‘play in the joints’ ”
between the two Clauses. See Trinity Lutheran Church of
Columbia, Inc. v. Comer, 582 U. S. ___, ___ (2017) (slip op.,
at 6). That “play” gives States some degree of legislative
leeway. It sometimes allows a State to further antiestab-
lishment interests by withholding aid from religious insti-
tutions without violating the Constitution’s protections for
the free exercise of religion. In my view, Maine’s nonsec-
tarian requirement falls squarely within the scope of that
constitutional leeway. I respectfully dissent.
I
A
The First Amendment’s two Religion Clauses together
provide that the government “shall make no law respecting
an establishment of religion, or prohibiting the free exercise
2 CARSON v. MAKIN
BREYER, J., dissenting
thereof.” Each Clause, linguistically speaking, is “cast in
absolute terms.” Walz v. Tax Comm’n of City of New York,
397 U. S. 664, 668 (1970). The first Clause, the Establish-
ment Clause, seems to bar all government “sponsorship, fi-
nancial support, [or] active involvement . . . in religious ac-
tivity,” while the second Clause, the Free Exercise Clause,
seems to bar all “governmental restraint on religious prac-
tice.” Id., at 668, 670. The apparently absolutist nature of
these two prohibitions means that either Clause, “if ex-
panded to a logical extreme, would tend to clash with the
other.” Id., at 668–669. Because of this, we have said, the
two Clauses “are frequently in tension,” Locke v. Davey,
540 U. S. 712, 718 (2004), and “often exert conflicting pres-
sures” on government action, Cutter v. Wilkinson, 544 U. S.
709, 719 (2005).
On the one hand, the Free Exercise Clause “ ‘protect[s]
religious observers against unequal treatment.’ ” Trinity
Lutheran, 582 U. S., at ___ (slip op., at 6) (quoting Church
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 542
(1993); alteration in original). We have said that, in the
education context, this means that States generally cannot
“ba[r] religious schools from public benefits solely because
of the religious character of the schools.” Espinoza v. Mon-
tana Dept. of Revenue, 591 U. S. ___, ___ (2020) (slip op., at
9); see Trinity Lutheran, 582 U. S., at ___–___ (slip op., at
9–10).
On the other hand, the Establishment Clause “commands
a separation of church and state.” Cutter, 544 U. S., at 719.
A State cannot act to “aid one religion, aid all religions, or
prefer one religion over another.” Everson v. Board of Ed.
of Ewing, 330 U. S. 1, 15 (1947). This means that a State
cannot use “its public school system to aid any or all reli-
gious faiths or sects in the dissemination of their doctrines
and ideals.” Illinois ex rel. McCollum v. Board of Ed. of
School Dist. No. 71, Champaign Cty., 333 U. S. 203, 211
(1948). Nor may a State “adopt programs or practices in its
Cite as: 596 U. S. ____ (2022) 3
BREYER, J., dissenting
public schools . . . which ‘aid or oppose’ any religion.” Ep-
person v. Arkansas, 393 U. S. 97, 106 (1968). “This prohibi-
tion,” we have cautioned, “is absolute.” Ibid. See, e.g.,
McCollum, 333 U. S. 203 (no weekly religious teachings in
public schools); Engel v. Vitale, 370 U. S. 421 (1962) (no
prayers in public schools); School Dist. of Abington Town-
ship v. Schempp, 374 U. S. 203 (1963) (no Bible readings in
public schools); Epperson, 393 U. S. 97 (no religiously tai-
lored curriculum in public schools); Wallace v. Jaffree, 472
U. S. 38 (1985) (no period of silence for meditation or prayer
in public schools); Lee v. Weisman, 505 U. S. 577 (1992) (no
prayers during public school graduations); Santa Fe Inde-
pendent School Dist. v. Doe, 530 U. S. 290 (2000) (no pray-
ers during public school football games).
Although the Religion Clauses are, in practice, often in
tension, they nonetheless “express complementary values.”
Cutter, 544 U. S., at 719. Together they attempt to chart a
“course of constitutional neutrality” with respect to govern-
ment and religion. Walz, 397 U. S., at 669. They were writ-
ten to help create an American Nation free of the religious
conflict that had long plagued European nations with “gov-
ernmentally established religion[s].” Engel, 370 U. S., at
431. Through the Clauses, the Framers sought to avoid the
“anguish, hardship and bitter strife” that resulted from the
“union of Church and State” in those countries. Id., at 429;
see also Committee for Public Ed. & Religious Liberty v.
Nyquist, 413 U. S. 756, 795–796 (1973).
The Religion Clauses thus created a compromise in the
form of religious freedom. They aspired to create a “benev-
olent neutrality”—one which would “permit religious exer-
cise to exist without sponsorship and without interference.”
Walz, 397 U. S., at 669. “[T]he basic purpose of these pro-
visions” was “to insure that no religion be sponsored or fa-
vored, none commanded, and none inhibited.” Ibid. This
religious freedom in effect meant that people “were entitled
4 CARSON v. MAKIN
BREYER, J., dissenting
to worship God in their own way and to teach their chil-
dren” in that way. C. Radcliffe, The Law & Its Compass 71
(1960). We have historically interpreted the Religion
Clauses with these basic principles in mind. See, e.g.,
Nyquist, 413 U. S., at 771–772, 794–796; Walz, 397 U. S., at668–670; Engel, 370 U. S., at 429–432.
And in applying these Clauses, we have often said that
“there is room for play in the joints” between them. Walz,
397 U. S., at 669; see, e.g., Norwood v. Harrison, 413 U. S.
455, 469 (1973); Cutter, 544 U. S., at 719; Locke, 540 U. S.,
at 718–719; Trinity Lutheran, 582 U. S., at ___ (slip op., at
6); Espinoza, 591 U. S., at ___ (slip op., at 6). This doctrine
reflects the fact that it may be difficult to determine in any
particular case whether the Free Exercise Clause requires
a State to fund the activities of a religious institution, or
whether the Establishment Clause prohibits the State from
doing so. Rather than attempting to draw a highly reticu-
lated and complex free-exercise/establishment line that
varies based on the specific circumstances of each state-
funded program, we have provided general interpretive
principles that apply uniformly in all Religion Clause cases.
At the same time, we have made clear that States enjoy a
degree of freedom to navigate the Clauses’ competing pro-
hibitions. See, e.g., Cutter, 544 U. S., at 713, 719–720. This
includes choosing not to fund certain religious activity
where States have strong, establishment-related reasons
for not doing so. See, e.g., Locke, 540 U. S., at 719–722.
And, States have freedom to make this choice even when
the Establishment Clause does not itself prohibit the State
from funding that activity. Id., at 719 (“[T]here are some
state actions permitted by the Establishment Clause but
not required by the Free Exercise Clause”). The Court to-
day nowhere mentions, and I fear effectively abandons, this
longstanding doctrine.
Cite as: 596 U. S. ____ (2022) 5
BREYER, J., dissenting
B
I have previously discussed my views of the relationship
between the Religion Clauses and how I believe these
Clauses should be interpreted to advance their goal of
avoiding religious strife. See, e.g., Espinoza, 591 U. S., at
___–___ (dissenting opinion) (slip op., at 13–20); Van Orden
v. Perry, 545 U. S. 677, 698–705 (2005) (opinion concurring
in judgment); Zelman v. Simmons-Harris, 536 U. S. 639,
717–729 (2002) (dissenting opinion). Here I simply note the
increased risk of religiously based social conflict when gov-
ernment promotes religion in its public school system.
“[T]he prescription of prayer and Bible reading in the public
schools, during and as part of the curricular day, involving
young impressionable children whose school attendance is
statutorily compelled,” can “give rise to those very divisive
influences and inhibitions of freedom which both religion
clauses of the First Amendment” sought to prevent.
Schempp, 374 U. S., at 307 (Goldberg, J., concurring).
This potential for religious strife is still with us. We are
today a Nation with well over 100 different religious
groups, from Free Will Baptist to African Methodist, Bud-
dhist to Humanist. See Pew Research Center, America’s
Changing Religious Landscape 21 (May 12, 2015). People
in our country adhere to a vast array of beliefs, ideals, and
philosophies. And with greater religious diversity comes
greater risk of religiously based strife, conflict, and social
division. The Religion Clauses were written in part to help
avoid that disunion. As Thomas Jefferson, one of the lead-
ing drafters and proponents of those Clauses, wrote, “ ‘to
compel a man to furnish contributions of money for the
propagation of opinions which he disbelieves, is sinful and
tyrannical.’ ” Everson, 330 U. S., at 13. And as James Mad-
ison, another drafter and proponent, said, compelled tax-
payer sponsorship of religion “is itself a signal of persecu-
tion,” which “will destroy that moderation and harmony
6 CARSON v. MAKIN
BREYER, J., dissenting
which the forbearance of our laws to intermeddle with Re-
ligion, has produced amongst its several sects.” Id., at 68–
69 (appendix to dissenting opinion of Rutledge, J.). To in-
terpret the Clauses with these concerns in mind may help
to further their original purpose of avoiding religious-based
division.
I have also previously explained why I believe that a
“rigid, bright-line” approach to the Religion Clauses—an
approach without any leeway or “play in the joints”—will
too often work against the Clauses’ underlying purposes.
Espinoza, 591 U. S., at ___ (dissenting opinion) (slip op., at
18); see also Van Orden, 545 U. S., at 669–700 (opinion con-
curring in judgment). “[G]overnment benefits come in
many shapes and sizes.” Espinoza, 591 U. S., at ___ (slip
op., at 16) (dissenting opinion). Not all state-funded pro-
grams that have religious restrictions carry the same risk
of creating social division and conflict. In my view, that risk
can best be understood by considering the particular benefit
at issue, along with the reasons for the particular religious
restriction at issue. See ibid.; Trinity Lutheran, 582 U. S.,
at ___ (slip op., at 1) (BREYER, J., concurring in judgment).
Recognition that States enjoy a degree of constitutional lee-
way allows States to enact laws sensitive to local circum-
stances while also allowing this Court to consider those cir-
cumstances in light of the basic values underlying the
Religion Clauses.
In a word, to interpret the two Clauses as if they were
joined at the hip will work against their basic purpose: to
allow for an American society with practitioners of over 100
different religions, and those who do not practice religion at
all, to live together without serious risk of religion-based
social divisions.
II
The majority believes that the principles set forth in this
Court’s earlier cases easily resolve this case. But they do
Cite as: 596 U. S. ____ (2022) 7
BREYER, J., dissenting
not.
We have previously found, as the majority points out,
that “a neutral benefit program in which public funds flow
to religious organizations through the independent choices
of private benefit recipients does not offend the Establish-
ment Clause.” Ante, at 10 (citing Zelman, 536 U. S., at 652–
653). We have thus concluded that a State may, consistent
with the Establishment Clause, provide funding to religious
schools through a general public funding program if the
“government aid . . . reach[es] religious institutions only by
way of the deliberate choices of . . . individual [aid] recipi-
ents.” Id., at 652.
But the key word is “may.” We have never previously
held what the Court holds today, namely, that a State must
(not may) use state funds to pay for religious education as
part of a tuition program designed to ensure the provision
of free statewide public school education.
What happens once “may” becomes “must”? Does that
transformation mean that a school district that pays for
public schools must pay equivalent funds to parents who
wish to send their children to religious schools? Does it
mean that school districts that give vouchers for use at
charter schools must pay equivalent funds to parents who
wish to give their children a religious education? What
other social benefits are there the State’s provision of which
means—under the majority’s interpretation of the Free Ex-
ercise Clause—that the State must pay parents for the re-
ligious equivalent of the secular benefit provided? The con-
cept of “play in the joints” means that courts need not, and
should not, answer with “must” these questions that can
more appropriately be answered with “may.”
The majority also asserts that “[t]he ‘unremarkable’ prin-
ciples applied in Trinity Lutheran and Espinoza suffice to
resolve this case.” Ante, at 9. Not so. The state-funded
program at issue in Trinity Lutheran provided payment for
8 CARSON v. MAKIN
BREYER, J., dissenting
resurfacing school playgrounds to make them safer for chil-
dren. Any Establishment Clause concerns arising from
providing money to religious schools for the creation of safer
play yards are readily distinguishable from those raised by
providing money to religious schools through the program
at issue here—a tuition program designed to ensure that all
children receive their constitutionally guaranteed right to
a free public education. After all, cities and States normally
pay for police forces, fire protection, paved streets, munici-
pal transport, and hosts of other services that benefit
churches as well as secular organizations. But paying the
salary of a religious teacher as part of a public school tuition
program is a different matter.
In addition, schools were excluded from the playground
resurfacing program at issue in Trinity Lutheran because
of the mere fact that they were “owned or controlled by a
church, sect, or other religious entity.” 582 U. S., at ___
(slip op., at 2). Schools were thus disqualified from receiv-
ing playground funds “solely because of their religious char-
acter,” not because of the “religious uses of [the] funding”
they would receive. Id., at ___, ___, n. 3 (slip op., at 10, 14,
n. 3). Here, by contrast, a school’s “ ‘affiliation or associa-
tion with a church or religious institution . . . is not dispos-
itive’ ” of its ability to receive tuition funds. 979 F. 3d 21,
38 (CA1 2020) (quoting then-commissioner of Maine’s De-
partment of Education). Instead, Maine chooses not to fund
only those schools that “ ‘promot[e] the faith or belief system
with which [the schools are] associated and/or presen[t] the
[academic] material taught through the lens of this
faith’ ”—i.e., schools that will use public money for religious
purposes. Ibid. Maine thus excludes schools from its tui-
tion program not because of the schools’ religious character
but because the schools will use the funds to teach and pro-
mote religious ideals.
For similar reasons, Espinoza does not resolve the pre-
sent case. In Espinoza, Montana created “a scholarship
Cite as: 596 U. S. ____ (2022) 9
BREYER, J., dissenting
program for students attending private schools.” 591 U. S.,
at ___ (slip op., at 1). But the State prohibited families from
using the scholarship at any private school “ ‘owned or con-
trolled in whole or in part by any church, religious sect, or
denomination.’ ” Id., at ___ (slip op., at 3) (quoting Mont.
Admin. Rule §42.4.802(1)(a) (2015)). As in Trinity Lu-
theran, Montana denied funds to schools based “expressly
on religious status and not religious use”; “[t]o be eligible”
for scholarship funds, a school had to “divorce itself from
any religious control or affiliation.” 591 U. S. at ___–___
(slip op., at 10–11). Here, again, Maine denies tuition
money to schools not because of their religious affiliation,
but because they will use state funds to promote religious
views.
These distinctions are important. The very point of the
Establishment Clause is to prevent the government from
sponsoring religious activity itself, thereby favoring one re-
ligion over another or favoring religion over nonreligion.
See Engel, 370 U. S., at 430 (“Under [the Establishment
Clause] . . . government in this country, be it state or fed-
eral, is without power to prescribe by law . . . any program
of governmentally sponsored religious activity”); Walz, 397
U. S., at 668 (“[F]or the men who wrote the Religion Clauses
. . . the ‘establishment’ of a religion connoted . . . [any] ac-
tive involvement of the sovereign in religious activity”);
Everson, 330 U. S., at 15 (States may not “pass laws which
aid one religion, aid all religions, or prefer one religion over
another”). State funding of religious activity risks the very
social conflict based upon religion that the Religion Clauses
were designed to prevent. And, unlike the circumstances
present in Trinity Lutheran and Espinoza, it is religious ac-
tivity, not religious labels, that lies at the heart of this case.
III
A
I turn now to consider the Maine program at issue here.
10 CARSON v. MAKIN
BREYER, J., dissenting
Maine’s Constitution guarantees Maine’s children a free
public education by requiring that all towns provide “for the
support and maintenance of public schools.” Art. VIII, pt.
1, §1; see also Me. Rev. Stat. Ann., Tit. 20–A, §2(1) (2008).
Because of the State’s rural geography and dispersed popu-
lation, however, over half of Maine’s school districts do not
operate public secondary schools. App. 70. To fulfill its con-
stitutional promise, Maine created a program that provides
some parents in these districts with a monetary grant to
help them educate their children “at the public school or the
approved private school of the parent’s choice.” Me. Rev.
Stat. Ann., Tit. 20–A, §5204(4) (Cum. Supp. 2021). The pro-
gram’s “function is limited to authorizing the provision of
tuition subsidies to the parents of children who live within
school [districts] that simply do not have the resources to
operate a public school system, and whose children would
otherwise not be given an opportunity to receive a free pub-
lic education.” Hallissey v. School Administrative Dist. No.
77, 2000 ME 143, ¶16, 755 A. 2d 1068, 1073.
Under Maine law, an “approved” private school must be
“nonsectarian.” §2951(2). A school fails to meet that re-
quirement (and is deemed “sectarian”) only if it is both (1)
“ ‘associated with a particular faith or belief system’ ” and
also (2) “ ‘promotes the faith or belief system with which it
is associated and/or presents the [academic] material
taught through the lens of this faith.’ ” 979 F. 3d, at 38
(quoting Maine’s then-education commissioner). To deter-
mine whether a school is sectarian, the “ ‘focus is on what
the school teaches through its curriculum and related activ-
ities, and how the material is presented.’ ” Ibid. (emphasis
deleted). “ ‘[A]ffiliation or association with a church or reli-
gious institution . . . is not dispositive’ ” of sectarian status.
Ibid.
The two private religious schools at issue here satisfy
both of these criteria. They are affiliated with a church or
religious organization. See App. 80, 91. And they also teach
Cite as: 596 U. S. ____ (2022) 11
BREYER, J., dissenting
students to accept particular religious beliefs and to engage
in particular religious practices.
The first school, Bangor Christian, has “educational ob-
jectives” that include “ ‘lead[ing] each unsaved student to
trust Christ as his/her personal savior and then to follow
Christ as Lord of his/her life,’ ” and “ ‘develop[ing] within
each student a Christian world view and Christian philoso-
phy of life.’ ” Id., at 84. Bangor Christian “does not believe
there is any way to separate the religious instruction from
the academic instruction.” Id., at 85. Academic instruction
and religious instruction are thus “completely intertwined.”
Ibid. Bangor Christian teaches in its social studies class,
for example, “ ‘that God has ordained evangelism.’ ” Id., at
87. And in science class, students learn that atmospheric
layers “ ‘are evidence of God’s good design.’ ” Id., at 89.
The second school, Temple Academy, similarly promotes
religion through academics. Its “educational philosophy ‘is
based on a thoroughly Christian and Biblical world view.’ ”
Id., at 92. The school’s “objectives” include “ ‘foster[ing]
within each student an attitude of love and reverence of the
Bible as the infallible, inerrant, and authoritative Word of
God.’ ” Ibid. And the school’s “ ‘academic growth’ objectives”
include “ ‘provid[ing] a sound academic education in which
the subjec[t] areas are taught from a Christian point of
view,’ ” and “ ‘help[ing] every student develop a truly Chris-
tian world view by integrating studies with the truths of
Scripture.’ ” Id., at 93. Like Bangor Christian, Temple “pro-
vides a ‘biblically-integrated education,’ which means that
the Bible is used in every subject that is taught.” Id., at 96.
In mathematics classes, for example, students learn that “a
creator designed the universe such that ‘one plus one is al-
ways going to be two.’ ” Ibid.
The differences between this kind of education and a
purely civic, public education are important. “The religious
education and formation of students is the very reason for
the existence of most private religious schools.” Our Lady
12 CARSON v. MAKIN
BREYER, J., dissenting
of Guadalupe School v. Morrissey-Berru, 591 U. S. ___, ___
(2020) (slip op., at 2). “[E]ducating young people in their
faith, inculcating its teachings, and training them to live
their faith,” we have said, “are responsibilities that lie at
the very core of the mission of a private religious school.”
Id., at ___ (slip op., at 18). Indeed, we have recognized that
the “connection that religious institutions draw between
their central purpose and educating the young in the faith”
is so “close” that teachers employed at such schools act as
“ministers” for purposes of the First Amendment. Id., at
___, ___ (slip op., at 2, 21); see also Hosanna-Tabor Evan-
gelical Lutheran Church and School v. EEOC, 565 U. S. 171(2012).
By contrast, public schools, including those in Maine,
seek first and foremost to provide a primarily civic educa-
tion. We have said that, in doing so, they comprise “a most
vital civic institution for the preservation of a democratic
system of government, and . . . the primary vehicle for
transmitting the values on which our society rests.” Plyler
v. Doe, 457 U. S. 202, 221 (1982) (citation and internal quo-
tation marks omitted). To play that role effectively, public
schools are religiously neutral, neither disparaging nor pro-
moting any one particular system of religious beliefs. We
accordingly have, as explained above, consistently required
public school education to be free from religious affiliation
or indoctrination. Cf. Edwards v. Aguillard, 482 U. S. 578,
583–584 (1987) (“The Court has been particularly vigilant
in monitoring compliance with the Establishment Clause in
elementary and secondary [public] schools”).
Maine legislators who endorsed the State’s nonsectarian
requirement recognized these differences between public
and religious education. They did not want Maine taxpay-
ers to finance, through a tuition program designed to en-
sure the provision of free public education, schools that
would use state money for teaching religious practices. See,
e.g., App. 104 (Maine representative stating that “[f]rom a
Cite as: 596 U. S. ____ (2022) 13
BREYER, J., dissenting
public policy position, we must believe that a religiously
neutral classroom is the best if funded by public dollars”);
id., at 106 (Maine senator asserting that the State’s “lim-
ited [tax] dollars for schools” should be spent on those “that
are non-religious and that are neutral on religion”). Under-
lying these views is the belief that the Establishment
Clause seeks government neutrality. And the legislators
thought that government payment for this kind of religious
education would be antithetical to the religiously neutral
education that the Establishment Clause requires in public
schools. Cf. Epperson, 393 U. S., at 106; McCollum, 333
U. S., at 211. Maine’s nonsectarian requirement, they be-
lieved, furthered the State’s antiestablishment interests in
not promoting religion in its public school system; the re-
quirement prevented public funds—funds allocated to en-
sure that all children receive their constitutional right to a
free public education—from being given to schools that
would use the funds to promote religion.
In the majority’s view, the fact that private individuals,
not Maine itself, choose to spend the State’s money on reli-
gious education saves Maine’s program from Establishment
Clause condemnation. But that fact, as I have said, simply
permits Maine to route funds to religious schools. See, e.g.,
Zelman, 536 U. S., at 652. It does not require Maine to
spend its money in that way. That is because, as explained
above, this Court has long followed a legal doctrine that
gives States flexibility to navigate the tension between the
two Religion Clauses. Supra, at 4. This doctrine “recog-
nize[s] that there is ‘play in the joints’ between what the
Establishment Clause permits and the Free Exercise
Clause compels.” Trinity Lutheran, 582 U. S., at ___ (slip
op., at 6) (quoting Locke, 540 U. S., at 718). This wiggle-
room means that “[t]he course of constitutional neutrality
in this area cannot be an absolutely straight line.” Walz,
397 U. S., at 669. And in walking this line of government
14 CARSON v. MAKIN
BREYER, J., dissenting
neutrality, States must have “some space for legislative ac-
tion neither compelled by the Free Exercise Clause nor pro-
hibited by the Establishment Clause,” Cutter, 544 U. S., at
719, in which they can navigate the tension created by the
Clauses and consider their own interests in light of the
Clauses’ competing prohibitions. See, e.g., Walz, 397 U. S.,
at 669.
Nothing in our Free Exercise Clause cases compels Maine
to give tuition aid to private schools that will use the funds
to provide a religious education. As explained above, this
Court’s decisions in Trinity Lutheran and Espinoza prohibit
States from denying aid to religious schools solely because
of a school’s religious status—that is, its affiliation with or
control by a religious organization. Supra, at 7–9. But we
have never said that the Free Exercise Clause prohibits
States from withholding funds because of the religious use
to which the money will be put. Cf. Trinity Lutheran, 582
U. S., at ___ (slip op., at 12). To the contrary, we upheld in
Locke a State’s decision to deny public funding to a recipient
“because of what he proposed to do” with the money, when
what he proposed to do was to “use the funds to prepare for
the ministry.” Trinity Lutheran, 582 U. S., at ___ (slip op.,
at 12); see also Espinoza, 591 U. S., at ___ (slip op., at 13)
(characterizing Locke similarly). Maine does not refuse to
pay tuition at private schools because of religious status or
affiliation. The State only denies funding to schools that
will use the money to promote religious beliefs through a
religiously integrated education—an education that, in
Maine’s view, is not a replacement for a civic-focused public
education. See 979 F. 3d, at 38. This makes Maine’s deci-
sion to withhold public funds more akin to the state decision
that we upheld in Locke, and unlike the withholdings that
we invalidated in Trinity Lutheran and Espinoza.
The Free Exercise Clause thus does not require Maine to
fund, through its tuition program, schools that will use pub-
Cite as: 596 U. S. ____ (2022) 15
BREYER, J., dissenting
lic money to promote religion. And considering the Estab-
lishment Clause concerns underlying the program, Maine’s
decision not to fund such schools falls squarely within the
play in the joints between those two Clauses. Maine has
promised all children within the State the right to receive a
free public education. In fulfilling this promise, Maine en-
deavors to provide children the religiously neutral educa-
tion required in public school systems. And that, in signif-
icant part, reflects the State’s antiestablishment interests
in avoiding spending public money to support what is es-
sentially religious activity. The Religion Clauses give
Maine the ability, and flexibility, to make this choice.
B
In my view, Maine’s nonsectarian requirement is also
constitutional because it supports, rather than undermines,
the Religion Clauses’ goal of avoiding religious strife. Forc-
ing Maine to fund schools that provide the sort of religiously
integrated education offered by Bangor Christian and Tem-
ple Academy creates a similar potential for religious strife
as that raised by promoting religion in public schools. It
may appear to some that the State favors a particular reli-
gion over others, or favors religion over nonreligion. Mem-
bers of minority religions, with too few adherents to estab-
lish schools, may see injustice in the fact that only those
belonging to more popular religions can use state money for
religious education. Taxpayers may be upset at having to
finance the propagation of religious beliefs that they do not
share and with which they disagree. And parents in school
districts that have a public secondary school may feel indig-
nant that only some families in the State—those families in
the more rural districts without public schools—have the
opportunity to give their children a Maine-funded religious
education.
Maine legislators who endorsed the State’s nonsectarian
requirement understood this potential for social conflict.
16 CARSON v. MAKIN
BREYER, J., dissenting
They recognized the important rights that religious schools
have to create the sort of religiously inspired curriculum
that Bangor Christian and Temple Academy teach. Legis-
lators also recognized that these private schools make reli-
giously based enrollment and hiring decisions. Bangor
Christian and Temple Academy, for example, have admis-
sions policies that allow them to deny enrollment to stu-
dents based on gender, gender-identity, sexual orientation,
and religion, and both schools require their teachers to be
Born Again Christians. App. 82–83, 89, 93, 98. Legislators
did not want Maine taxpayers to pay for these religiously
based practices—practices not universally endorsed by all
citizens of the State—for fear that doing so would cause a
significant number of Maine citizens discomfort or displeas-
ure. See, e.g., id., at 101 (Maine representative noting that
“private religious schools discriminate against citizens of
the State of Maine,” such as by “not hir[ing] individuals
whose beliefs are not consistent with the school’s religious
teachings,” and asserting that “it is fundamentally wrong
for us to fund” such discrimination); id., at 104 (Maine rep-
resentative stating that “the people of Maine” should not
use “public money” to advance “their religious pursuits,”
and that “discrimination in religious institutions” should
not be funded “with my dollar”); id., at 107 (Maine senator
expressing concern that “public funds could be used to teach
intolerant religious views”). The nonsectarian requirement
helped avoid this conflict—the precise kind of social conflict
that the Religion Clauses themselves sought to avoid.
Maine’s nonsectarian requirement also serves to avoid re-
ligious strife between the State and the religious schools.
Given that Maine is funding the schools as part of its effort
to ensure that all children receive the basic public education
to which they are entitled, Maine has an interest in ensur-
ing that the education provided at these schools meets cer-
tain curriculum standards. Religious schools, on the other
Cite as: 596 U. S. ____ (2022) 17
BREYER, J., dissenting
hand, have an interest in teaching a curriculum that ad-
vances the tenets of their religion. And the schools are of
course entitled to teach subjects in the way that best re-
flects their religious beliefs. But the State may disagree
with the particular manner in which the schools have de-
cided that these subjects should be taught.
This is a situation ripe for conflict, as it forces Maine into
the position of evaluating the adequacy or appropriateness
of the schools’ religiously inspired curriculum. Maine does
not want this role. As one legislator explained, one of the
reasons for the nonsectarian requirement was that
“[g]overnment officials cannot, and should not, review the
religious teachings of religious schools.” Ibid. Another leg-
islator cautioned that the State would be unable to “recon-
cile” the curriculum of “private religious schools who teach
religion in the classroom” with Maine “standards . . . that
do not include any sort of religion in them.” Id., at 102.
Nor do the schools want Maine in this role. Bangor Chris-
tian asserted that it would only consider accepting public
funds if it “did not have to make any changes in how it op-
erates.” Id., at 90. Temple Academy similarly stated that
it would only accept state money if it had “in writing that
the school would not have to alter its admissions standards,
hiring standards, or curriculum.” Id., at 99. The nonsec-
tarian requirement ensures that Maine is not pitted against
private religious schools in these battles over curriculum or
operations, thereby avoiding the social strife resulting from
this state-versus-religion confrontation. By invalidating
the nonsectarian requirement, the majority today subjects
the State, the schools, and the people of Maine to social con-
flict of a kind that they, and the Religion Clauses, sought to
prevent.
I emphasize the problems that may arise out of today’s
decision because they reinforce my belief that the Religion
Clauses do not require Maine to pay for a religious educa-
tion simply because, in some rural areas, the State will help
18 CARSON v. MAKIN
BREYER, J., dissenting
parents pay for a secular education. After all, the Estab-
lishment Clause forbids a State from paying for the practice
of religion itself. And state neutrality in respect to the
teaching of the practice of religion lies at the heart of this
Clause. See, e.g., Locke, 540 U. S., at 721–722 (noting that
there are “few areas in which a State’s antiestablishment
interests come more into play” than state funding of minis-
ters who will “lead [their] congregation[s]” in “religious en-
deavor[s]”). There is no meaningful difference between a
State’s payment of the salary of a religious minister and the
salary of someone who will teach the practice of religion to
a person’s children. At bottom, there is almost no area “as
central to religious belief as the shaping, through primary
education, of the next generation’s minds and spirits.” Zel-
man, 536 U. S., at 725 (BREYER, J., dissenting). The Estab-
lishment Clause was intended to keep the State out of this
area.
* * *
Maine wishes to provide children within the State with a
secular, public education. This wish embodies, in signifi-
cant part, the constitutional need to avoid spending public
money to support what is essentially the teaching and prac-
tice of religion. That need is reinforced by the fact that we
are today a Nation of more than 330 million people who as-
cribe to over 100 different religions. In that context, state
neutrality with respect to religion is particularly important.
The Religion Clauses give Maine the right to honor that
neutrality by choosing not to fund religious schools as part
of its public school tuition program. I believe the majority
is wrong to hold the contrary. And with respect, I dissent.
Cite as: 596 U. S. ____ (2022) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1088
_________________
DAVID CARSON, AS PARENT AND NEXT FRIEND OF O. C.,
ET AL., PETITIONERS v. A. PENDER MAKIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 21, 2022]
JUSTICE SOTOMAYOR, dissenting.
This Court continues to dismantle the wall of separation
between church and state that the Framers fought to build.
JUSTICE BREYER explains why the Court’s analysis falters
on its own terms, and I join all but Part I–B of his dissent.
I write separately to add three points.
First, this Court should not have started down this path
five years ago. See Trinity Lutheran Church of Columbia,
Inc. v. Comer, 582 U. S. ___ (2017). Before Trinity Lu-
theran, it was well established that “both the United States
and state constitutions embody distinct views” on “the sub-
ject of religion”—“in favor of free exercise, but opposed to
establishment”—“that find no counterpart” with respect to
other constitutional rights. Locke v. Davey, 540 U. S. 712,
721 (2004). Because of this tension, the Court recognized
“ ‘room for play in the joints’ between” the Religion Clauses,
with “some state actions permitted by the Establishment
Clause but not required by the Free Exercise Clause.” Id.,at 718–719 (quoting Walz v. Tax Comm’n of City of New
York, 397 U. S. 664, 669 (1970)); see ante, at 4 (BREYER, J.,
dissenting). Using this flexibility, and consistent with a
rich historical tradition, see Trinity Lutheran, 582 U. S., at
___–___ (SOTOMAYOR, J., dissenting) (slip op., at 11–16),
States and the Federal Government could decline to fund
2 CARSON v. MAKIN
SOTOMAYOR, J., dissenting
religious institutions. Moreover, the Court for many dec-
ades understood the Establishment Clause to prohibit gov-
ernment from funding religious exercise.*
Over time, the Court eroded these principles in certain
respects. See, e.g., Zelman v. Simmons-Harris, 536 U. S.
639, 662 (2002) (allowing government funds to flow to reli-
gious schools if private individuals selected the benefiting
schools; the government program was “entirely neutral
with respect to religion”; and families enjoyed a “genuine
choice among options public and private, secular and reli-
gious”). Nevertheless, the space between the Clauses con-
tinued to afford governments “some room to recognize the
unique status of religious entities and to single them out on
that basis for exclusion from otherwise generally applicable
laws.” Trinity Lutheran, 582 U. S., at ___ (SOTOMAYOR, J.,
dissenting) (slip op., at 9).
Trinity Lutheran veered sharply away from that under-
standing. After assuming away an Establishment Clause
violation, the Court revolutionized Free Exercise doctrine
by equating a State’s decision not to fund a religious organ-
ization with presumptively unconstitutional discrimination
on the basis of religious status. See id., at ___–___ (slip op.,
at 10–11). A plurality, however, limited the Court’s deci-
sion to “express discrimination based on religious identity”
(i.e., status), not “religious uses of funding.” Id., at ___, n. 3
(slip op., at 14, n. 3). In other words, a State was barred
——————
* See, e.g., Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947) (“No
tax in any amount, large or small, can be levied to support any religious
activities or institutions . . . ”); Agostini v. Felton, 521 U. S. 203, 222–223
(1997) (observing that government aid that impermissibly “advanc[ed]
. . . religion” was constitutionally barred); Mitchell v. Helms, 530 U. S.
793, 840 (2000) (O’Connor, J., concurring in judgment) (“[O]ur decisions
provide no precedent for the use of public funds to finance religious ac-
tivities” (internal quotation marks omitted)); see also Rosenberger v. Rec-
tor and Visitors of Univ. of Va., 515 U. S. 819, 875–876 (1995) (Souter,
J., dissenting) (chronicling cases).
Cite as: 596 U. S. ____ (2022) 3
SOTOMAYOR, J., dissenting
from withholding funding from a religious entity “solely be-
cause of its religious character,” id., at ___ (opinion of the
Court) (slip op., at 14), but retained authority to do so on
the basis that the funding would be put to religious uses.
Two Terms ago, the Court reprised and extended Trinity
Lutheran’s error to hold that a State could not limit a pri-
vate-school voucher program to secular schools. Espinoza
v. Montana Dept. of Revenue, 591 U. S. ___, ___ (2020) (slip
op., at 9). The Court, however, again refrained from extend-
ing Trinity Lutheran from funding restrictions based on re-
ligious status to those based on religious uses. Espinoza,
591 U. S., at ___–___ (2020) (slip op., at 9–12).
As JUSTICE BREYER explains, see ante, at 8–9, this status-
use distinction readily distinguishes this case from Trinity
Lutheran and Espinoza. I warned in Trinity Lutheran,
however, that the Court’s analysis could “be manipulated to
call for a similar fate for lines drawn on the basis of reli-
gious use.” 582 U. S., at ___, n. 14 (dissenting opinion) (slip
op., at 25, n. 14). That fear has come to fruition: The Court
now holds for the first time that “any status-use distinction”
is immaterial in both “theory” and “practice.” Ante, at 17.
It reaches that conclusion by embracing arguments from
prior separate writings and ignoring decades of precedent
affording governments flexibility in navigating the tension
between the Religion Clauses. As a result, in just a few
years, the Court has upended constitutional doctrine, shift-
ing from a rule that permits States to decline to fund reli-
gious organizations to one that requires States in many cir-
cumstances to subsidize religious indoctrination with
taxpayer dollars.
Second, the consequences of the Court’s rapid transfor-
mation of the Religion Clauses must not be understated.
From a doctrinal perspective, the Court’s failure to apply
the play-in-the-joints principle here, see ante, at 13–14
(BREYER, J., dissenting), leaves one to wonder what, if any-
thing, is left of it. The Court’s increasingly expansive view
4 CARSON v. MAKIN
SOTOMAYOR, J., dissenting
of the Free Exercise Clause risks swallowing the space be-
tween the Religion Clauses that once “permit[ted] religious
exercise to exist without sponsorship and without interfer-
ence.” Walz, 397 U. S., at 669.
From a practical perspective, today’s decision directs the
State of Maine (and, by extension, its taxpaying citizens) to
subsidize institutions that undisputedly engage in religious
instruction. See ante, at 10–11 (BREYER, J., dissenting). In
addition, while purporting to protect against discrimination
of one kind, the Court requires Maine to fund what many of
its citizens believe to be discrimination of other kinds. See
ante, at 16 (BREYER, J., dissenting) (summarizing Bangor
Christian Schools’ and Temple Academy’s policies denying
enrollment to students based on gender identity, sexual ori-
entation, and religion). The upshot is that Maine must
choose between giving subsidies to its residents or refrain-
ing from financing religious teaching and practices.
Finally, the Court’s decision is especially perverse be-
cause the benefit at issue is the public education to which
all of Maine’s children are entitled under the State Consti-
tution. As this Court has long recognized, the Establish-
ment Clause requires that public education be secular and
neutral as to religion. See ante, at 2–3, 12 (BREYER, J., dis-
senting) (collecting cases). The Court avoids this framing
of Maine’s benefit because, it says, “Maine has decided not
to operate schools of its own, but instead to offer tuition as-
sistance that parents may direct to the public or private
schools of their choice.” Ante, at 14. In fact, any such
“deci[sion],” ibid., was forced upon Maine by “the realities
of remote geography and low population density,” ante, at
2, which render it impracticable for the State to operate its
own schools in many communities.
The Court’s analysis does leave some options open to
Maine. For example, under state law, school administra-
tive units (SAUs) that cannot feasibly operate their own
Cite as: 596 U. S. ____ (2022) 5
SOTOMAYOR, J., dissenting
schools may contract directly with a public school in an-
other SAU, or with an approved private school, to educate
their students. See Me. Rev. Stat. Ann., Tit. 20–A, §§2701,
2702 (2008). I do not understand today’s decision to man-
date that SAUs contract directly with schools that teach re-
ligion, which would go beyond Zelman’s private-choice doc-
trine and blatantly violate the Establishment Clause.
Nonetheless, it is irrational for this Court to hold that the
Free Exercise Clause bars Maine from giving money to par-
ents to fund the only type of education the State may pro-
vide consistent with the Establishment Clause: a reli-
giously neutral one. Nothing in the Constitution requires
today’s result.
* * *
What a difference five years makes. In 2017, I feared that
the Court was “lead[ing] us . . . to a place where separation
of church and state is a constitutional slogan, not a consti-
tutional commitment.” Trinity Lutheran, 582 U. S., at ___
(dissenting opinion) (slip op., at 27). 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 exer-
cise, any State that values its historic antiestablishment in-
terests 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.