BLOG: Observations on the Carson v. Makin SCOTUS Case

By: Robert S. Eitel

This week, the Supreme Court heard oral argument in Carson v. Makin, an education and religious freedom case brought by two Maine families seeking to use otherwise generally available state tuition aid to send their children to fully accredited faith-based secondary schools.  DFI proudly filed an amicus brief in the case. I won’t engage in an attempt to decipher the arguments and questions to glean how the Court might decide the case, as that is always a fool’s errand. Instead, I’ll reply to some of the arguments (in italics below) that I’ve read in support of Maine’s unconstitutional conduct.

The families contend that the First Amendment requires Maine to fund religious education at private schools.

This is not true.  The families argue that, although Maine has no constitutional obligation to subsidize private education, it has chosen to do so through its tuition aid program, and the Constitution does not permit Maine to exclude private religious schools offering religious instruction from receiving that aid. Indeed, as Chief Justice Roberts wrote for a 5-4 majority in Espinoza v. Montana Dept. of Revenue, “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.” That’s precisely the argument made by the families in Carson.  

Maine draws a constitutionally proper distinction between a school’s religious status (protected) and use (not protected). 

Maine argues that families may choose to attend religious schools as long as those schools do not provide “an education designed to proselytize and inculcate children with a particular faith.”  Such a reading of the law would likely gut Espinoza. A distinction between status and use would render meaningless the right to free exercise protected by the First Amendment and run the risk of Establishment Clause violations. Public bureaucrats would have to make subjective judgments about faith and religiosity in these schools, as they’d have to parse out all facets of the school in order to weigh the amount of religious instruction it requires of students. Government has no business making such intrusive inquiries about faith. And, over time, there’s also the risk that religious schools would drift away from their religious beliefs and values in order to obtain state aid.  Let’s hope that the Court rejects Maine’s unpersuasive constitutional hair-splitting. 

The schools chosen by the families teach objectionable values.  

The argument goes like this: No one should have to support, through their tax dollars, beliefs with which they disagree, and the religious schools chosen by these families teach unacceptable views on sex and gender.  Really?  Do these same critics object to Critical Race Theory and gender identity theory teaching materials and methodologies being taught in many school systems around the country? Aren’t taxpayers funding these efforts? The difference here is that much of the nation’s cultural elite supports these government-approved teachings. I’d also argue that, over time, a kind of state-supported secularism has developed in education that has the strong aroma of a religious establishment of its own, with its own sacraments, beliefs, and the like. For a much more articulate and expansive discussion of this issue, I strongly recommend that you read or view former Attorney General Bill Barr’s speech to the Alliance Defending Freedom from last spring. You can watch the speech here.

As an amicus curiae and strong supporter of education and religious freedom, DFI will continue to watch this case closely.

Robert S. Eitel is the President and Co-founder of the Defense of Freedom Institute for Policy Studies. He previously served as Senior Counselor to the Secretary of Education from 2017 through 2020 and Deputy General Counsel of the U.S. Department of Education from 2005 until 2009.