Remarks on the “Unremarkable” Carson v. Makin

by Jacob Baus


Is this a judgmental slight from Downton Abbey’s Mr. Carson, or a harsh but fair critique from TV personality Carson Kressley? Neither! This is how U.S. Supreme Court Chief Justice John Roberts described the holding in a recent case, Carson v. Makin.

The First Amendment of the U.S. Constitution states, in part, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; . . .”, and these clauses are commonly referred to as the Establishment Clause and Free Exercise Clause. Carson is the latest case concerning the provision of public money to a religious-affiliated school and how states have attempted to navigate the issue with respect to these clauses.

Maine is a sparsely populated state, and many of its school districts do not operate a secondary school. Consequently, Maine created a tuition assistance program for families whose resident school district does not provide a secondary school education. An eligible family chooses a school, and the resident school district sends tuition assistance payments to the school, if the school is eligible.

To be eligible, a school must satisfy certain education-related requirements, may be public or private, and must be nonreligious. Maine excluded religious schools from the program based on a position that the provision of public money to religious schools violated the Establishment Clause of the First Amendment of the U.S. Constitution. Eligible families sued Maine’s Commissioner of Education, arguing the program’s nonreligious requirement violated the Free Exercise, Establishment, and Equal Protection Clauses of the U.S. Constitution.

Applying principles from the related Trinity Lutheran Church of Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue cases, the Court arrived at a similar conclusion in Carson; that is, excluding religious schools from program eligibility because of their religious character violates the Free Exercise Clause. This reliance on consistent and recent precedent may explain why Chief Justice Roberts found the conclusion in this case to be unremarkable. Nevertheless, the Court addressed a few significant considerations and arguments in reaching its conclusion.

First, the Court noted that the flow of public funds to a religious institution through the independent choice of a benefit recipient does not offend the Establishment Clause. Consequently, excluding religious schools from program eligibility promotes stricter separation between church and state than the Establishment Clause requires. And, the Court continued, a state’s interest in separating church and state further than the Establishment Clause requires is not sufficiently compelling in this case to justify a Free Exercise Clause violation to deny a public benefit because of religious character.

Second, Maine argued that the benefit at issue was providing the “rough equivalent of a public school education” and therefore must be secular. The Court rejected this argument, citing numerous facts about the program undermining this assertion. The Court ultimately concluded that the only real manner in which an eligible private school is the “equivalent” of a public school under the program is that it must be secular, thereby supporting the Court’s position that the program excludes based upon religious character.

Third, Maine argued that the nonreligious requirement was not religious character-based, but rather religious use-based. Maine argued that because religion permeates everything a religious school does, the nonreligious requirement was effectively use-based and therefore permissible. Maine argued this distinction because the Court has previously held that a state’s religious use-based exclusion was constitutionally permissible.[1] The Court rejected this argument, concluding that a prohibition on character-based discrimination is not grounds for engaging in use-based discrimination.

What does Carson mean for Colorado?

Nothing in the Carson decision requires Colorado to provide public money to support private schools. The Carson decision reaffirms an important point of clarity from the Espinoza decision:

[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.

It is not novel to state that the General Assembly must be cautious if a public program or benefit appears to categorically exclude a religious school or institution. It appears from Carson, Espinoza, and Trinity, that the Court is likely inclined to find that religious exclusions are character-based, and therefore in violation of the Free Exercise Clause, even if a state has a no-aid provision similar to article IX, section 7 of the Colorado Constitution.

Although it is always difficult to predict what happens next, the Court will likely have future opportunities to examine whether there is a meaningful constitutional distinction between exclusions that are character-based versus use-based in nature and how states should consider issues that fall in an often-found tension between the Free Exercise and Establishment Clauses.


[1] Locke v. Davey, 540 U.S. 712 (2004) (A publicly funded Washington scholarship excluded the use of the scholarship for a degree in theology. The United States Supreme Court concluded the exclusion was not unconstitutional.)