Another Chink in the Armor of Legal Discrimination against Religious Schools

While Dobbs has rightly captured the nation’s attention and will surely continue to do so for many years ahead, another case from this term also warrants celebration. Carson v. Makin is a monumental victory for religious liberty that promises to have immense impact on education policy in the United States.

The story of this case begins, in a sense, almost 170 years ago. In 1853, Father John Bapst, S.J., the pastor of a parish in Ellsworth, Maine, directed public school students in his parish to stop reciting from the King James Bible at school. Such recitations were a commonplace requirement in public schools at the time. Fr. Bapst had previously sought, unsuccessfully, to secure an exemption for Catholic students.

When sixteen students were expelled for following his instructions, nativists torched both of Ellsworth’s Catholic churches and blew up the small Catholic school Bapst had founded. Father Bapst’s bishop, fearing for his safety, ordered him to leave town. When Bapst surreptitiously returned to visit his flock, the nativists apprehended him, ran him out of town on a rail, tied him naked to a tree, tarred and feathered him, and attempted to burn him alive. He survived, but barely. (Apparently, their matches failed.) Fr. Bapst, who later became the first president of Boston College, was tormented by memories of this ordeal throughout his life.

In 1928, a new Catholic high school, named for Fr. Bapst, opened in Bangor, Maine. In 1980, the school closed and then reopened as a secular school. The reason the school shed its Catholic identity is at the heart of the Supreme Court’s decision last month in Carson v. Makin. Maine forced it to make what the Court has now made clear is an unconstitutional choice: either cease to be Catholic or lose public funding.

Since 1873, Maine has permitted residents in school districts without high schools to use public funds at the public or private secondary school of their choice. (This practice is known colloquially as “tuitioning.”) For over one hundred years, students could use these funds to attend faith-based schools. But in 1980, Maine’s attorney general concluded that the First Amendment’s Establishment Clause required it to exclude “sectarian” schools from the tuitioning program. In 1981, Maine codified this exclusion. Since then, participating students can use public funds to attend any high school, public or private, anywhere in the world, unless the school is “sectarian,” which apparently means “too religious,” according to the state of Maine. This policy explains why John Bapst High School shed its Catholic identity. Were it to have remained Catholic, it would have become ineligible to continue receiving funds from tuitioned students.

The End of Religious Tests

Fortunately, in Carson v. Makin, the Supreme Court ruled that faith-based schools cannot be asked to shed their religious identity in order to participate in school-choice programs. As the majority opinion makes clear, Maine’s exclusion of faith-based schools from its tuition assistance program is neither constitutionally required nor constitutionally permissible.

Of course, before the twenty-first century, the state might have been forgiven for making an honest mistake. The Supreme Court’s Establishment Clause doctrine has been all over the map in the second half of the twentieth century. In 1980, many decisions seemed to prohibit students from using public funds to attend religious schools. Speaking of maps, for example, in Meek v. Pittenger (1975) and Wolman v. Walters (1977), the Court held that the Establishment Clause permitted states to provide secular textbooks, but not instructional materials such as maps, to faith-based schools. Seriously.

Thankfully, the Supreme Court’s Establishment Clause doctrine has taken a decidedly pro-religion turn in the past few decades. In decision after decision leading up to Carson, the Court has reiterated that the Constitution demands neutrality and prohibits hostility toward religious institutions and believers. Importantly, in Zelman v. Simmons-Harris (2002), the Court held that the Establishment Clause does not prohibit faith-based schools from participating in publicly funded private-school-choice programs.

Zelman cleared away any possible federal constitutional hurdle to Maine’s inclusion of religious schools in its tuitioning program. Maine’s own constitution doesn’t have an establishment clause. So, in search of a rationale, Maine has maintained that it simply shouldn’t have to pay for religious instruction if it doesn’t want to do so.

The constitutional foundation supporting Maine’s “we can discriminate if we want to” argument, however, was crumbling well before Carson. The Court had already explicitly rejected it in two recent decisions. In Trinity Lutheran Church v. Comer (2017), the Court held that Missouri violated the Free Exercise Clause by excluding a faith-based preschool from a state program that provided recycled tires for playground resurfacing. Writing for the majority, Chief Justice John Roberts concluded that Missouri’s policy put Trinity Lutheran to an unconstitutional choice: “It may participate in an otherwise available benefit program or remain a religious institution.”

And in Espinoza v. Montana Department of Revenue (2020), the Court held that the Montana Supreme Court violated the Free Exercise Clause when it invalidated, on state constitutional grounds, a private-school-choice program because it included faith-based schools. Again writing for the majority, Chief Justice Roberts observed: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Religious Status vs. Religious Use

Several months after Espinoza, the U.S. Court of Appeals for the First Circuit rejected the most recent challenge to Maine’s tuitioning program in Carson v. Makin. But how could it do so, since the Supreme Court had just ruled in Espinoza that states cannot constitutionally prohibit religious schools from participating in choice programs? In upholding the program, the First Circuit relied on a possible loophole in both Trinity Lutheran and Espinoza. Both majority opinions concluded that the challenged policies discriminated against recipients based on their religious “status” or character. But the opinions declined to say whether a state could decline to provide funds that might be put to a religious use—like religious instruction. The Chief Justice acknowledged in both cases that this “status/use” distinction might in fact be constitutionally irrelevant, but decided to leave that question for another day.

That day came in Carson. The Court acknowledged that there is no constitutionally relevant distinction between illicit discrimination based on religious status and licit discrimination based on religious use. Chief Justice Roberts observed that the Court has “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause” than status-based discrimination. This is obviously correct. As Justice Gorsuch argued in a concurring opinion in Espinoza, “The Constitution . . . protects not just the right [to hold] beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.”

Moreover, the “religious status”/“religious conduct” divide is a distinction without a difference in many if not most cases, because usually “being religious” means “doing religious things.” For example, the Notre Dame Religious Liberty initiative’s amicus brief in Carson on behalf of Catholic, Jewish, and Islamic schools illustrates that, in all three faith traditions, the integration of faith and reason—the imbuing of secular instruction with religious content—is central to their identity as religious schools. To ask such schools to cease teaching religion as a condition of participating in a parental choice program would be tantamount to doing exactly what the Court has made clear the government may not do, which is forcing them to make the unconstitutional choice that Maine once forced on John Bapst Catholic High School: “You may participate in this program, or you may remain a religious school.”

Implications beyond Carson

While Carson v. Makin breaks little ground doctrinally, its implications for education policy are sweeping. For decades, parental choice has been gaining momentum in the United States. Currently, thirty-one states have at least one publicly funded private-school-choice program, which, in the 2020–21 school year supported more than 600,000 children, or just about ten percent of all private-school students. Almost all of the beneficiaries of these programs attend religious schools. Carson clears away a major impediment to their further expansion.

In 1875, the then–Speaker of the House, James G. Blaine, who, fittingly, represented Maine, almost succeeded in amending the U.S. Constitution to prohibit the funding of “sectarian” schools. Subsequently, states were required to include similar provisions in their constitutions as a condition of entering the Union. Others voluntarily amended their constitutions to include them. These provisions, often called “Blaine Amendments,” have an uncontested and well-documented anti-Catholic pedigree. School choice opponents try to use these amendments at every opportunity to block parental choice. Carson, especially when paired with Espinoza, will defang them in many cases.

And then there are charter schools. Authorized in forty-four states and D.C., charter schools are privately operated and publicly funded. All state laws designate them as “public schools” and require them to be “secular.” Many states even prohibit religious institutions from operating secular charter schools as well. As I have previously written, the constitutionality of laws prohibiting faith-based charter schools was in serious question even before Carson.

Now the only legal impediment to them is the question whether charter schools are, for federal constitutional purposes, “state actors”—or, to simplify a very complex legal question, whether they are public or private schools. This is because the government may not operate religious public schools, but must give students participating in private-school-choice programs the option of attending private religious schools. Federal courts are divided on the question whether charter schools are state actors. But in my view, the answer is no: charter schools are private schools, not public ones, no matter what state laws say they are. As private schools, the Constitution not only permits them to be religious, but also prohibits the government from saying otherwise.

Carson also has implications far beyond the parental choice context. For example, hundreds of state and federal programs funding charitable organizations and preschool education like Head Start enlist religious organizations on the condition that they secularize their programs. With Carson, all of these requirements are now constitutionally suspect. Religious liberty advocates undoubtedly are already busy assembling lists of these prohibitions, which promise to keep them and the federal courts occupied for years to come.

Finally, it is important to acknowledge that Carson represents the culmination of a battle for the equitable treatment of faith-based schools that spans nearly two centuries. As early as 1842, the first Archbishop of New York, “Dagger John Hughes,” sought public funds for Catholic schools on equality grounds. His demands and others like them were rebuked for well over a century.

Undeterred, Catholic and other faith-based schools set about the sacred task of educating our country’s most vulnerable children without a penny of public assistance. They lifted generations out of poverty and helped them become productive citizens. Over the past few decades, American education policies have, thankfully, begun to embrace the need to sustain the educational pluralism that these schools have long provided.

In Carson, the Supreme Court finally affirmed that Dagger John had been right all along. Education funding policies that exclude faith-based schools because they teach religion are not only unjust and unwise, but also unconstitutional. I hope that he and Father Bapst are celebrating.