Carson v. Makin — Supreme Court Holds Free Exercise Clause Forbids Excluding Religious Schools from Tuition Assistance Even for Their Religious Use of Funds

Docket No. 20-1088. Argued December 8, 2021 (date argued). Decided June 21, 2022 (date decided). Certiorari to the U.S. Court of Appeals for the First Circuit.

Vote and authorship, precisely. The syllabus records: “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 SOTOMAYOR, J., joined as to all but Part I–B. SOTOMAYOR, J., filed a dissenting opinion.” The judgment was 6-3: Chief Justice Roberts, joined in full by Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, formed the majority reversing the First Circuit; Breyer, joined by Kagan (and by Sotomayor except as to Part I-B), dissented; Sotomayor also filed a separate dissent of her own.

The holding, verbatim. Syllabus: “Held: Maine’s ’nonsectarian’ requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.” Maine funds tuition at public or private schools of a family’s choosing in school districts (SAUs) that operate no public secondary school of their own, but since 1981 has limited that assistance to “nonsectarian” schools; petitioners sought to direct tuition assistance to Bangor Christian Schools and Temple Academy, both accredited but excluded solely for being religious. The opinion’s closing paragraph: “Maine’s ’nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless 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.” Disposition: “979 F. 3d 21, reversed and remanded.”

Whether Carson resolves footnote 3’s reserved question (status vs. use) — yes, explicitly, and it says so. The First Circuit had tried to distinguish Trinity Lutheran and Espinoza on exactly the ground footnote 3 reserved, arguing Maine’s exclusion was “use-based” (barring funds because schools would use them to teach religion) rather than “status-based” (barring funds because of a school’s religious identity). The Carson majority rejected that distinction directly: “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 discrimination is any less offensive to the Free Exercise Clause.” Discussing Maine’s own concession that it does little to police how funds are actually used, the Court concluded: “That suggests that any status-use distinction 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” (slip op. at 17). Sotomayor’s dissent confirms this is exactly what her Trinity Lutheran dissent predicted, citing herself: “I warned in Trinity Lutheran… that the Court’s analysis could ‘be manipulated to call for a similar fate for lines drawn on the basis of religious 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” (Sotomayor, J., dissenting, slip op. at 3).

What the majority did not need to decide. Carson resolves only the Free Exercise question; it does not reach a freestanding Establishment Clause challenge because none was live — Maine’s own program is a private-choice voucher scheme, and the Court had already held in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), that such neutral benefit programs “in which public funds flow to religious organizations through the independent choices of private benefit recipients” do not offend the Establishment Clause, a point Carson simply reaffirms rather than re-litigates. The majority also does not disturb Locke v. Davey, 540 U.S. 712 (2004), which upheld a state’s exclusion of a scholarship recipient’s “essentially religious endeavor” of training for the ministry; Carson distinguishes Locke as resting on a narrow, historically rooted state interest against funding clergy training, and confines it there rather than overruling it: “Locke cannot be read beyond its narrow focus on vocational religious degrees 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.” And the opinion repeats, quoting Espinoza, that “a State need not subsidize private education” at all — the holding runs only to a state that has already chosen to fund private tuition and then tries to carve out religious options; it does not require any state to create or maintain a tuition-assistance program in the first place.

Analytical note. Carson is the third leg of the doctrinal sequence identified in the Trinity Lutheran entry: Trinity Lutheran (2017) reserved the status/use distinction in footnote 3 without a majority joining that reservation on the merits; Espinoza v. Montana (2020) extended the status-based holding to tuition vouchers while still declining to say a lesser standard of scrutiny applied to use-based discrimination; Carson (2022) is where the Court closes the loop and says outright that the status/use line “lacks a meaningful application.” That sequence is a real doctrinal progression, documented in each opinion’s own citations to the ones before it — Carson cites and quotes both predecessor opinions extensively by name. It is not, on this record, evidence of coordination among litigants: the slip opinion does not identify who funded or coordinated the underlying litigation, and no claim about which organizations litigated or financed which case should be made without a separate documentary source for that fact. Three cases on the same doctrinal question reaching the Court across five years (2017, 2020, 2022) is also consistent with a short menu of available constitutional arguments in this area being pressed repeatedly by different plaintiffs, not proof of a single coordinated campaign.