Exclusion of Religious Schooling from Generally Available School Choice Programs Generally Unconstitutional,
Since Zelman v. Simmons-Harris (2002), the Supreme Court has made clear that school choice programs, which financially support parents’ sending children to private schools, may include religious schools, without violating the Establishment Clause—just as university scholarship programs (such as the GI Bill and others) may be used at religious institutions alongside secular institutions without violating the Establishment Clause. But must they include religious schools on basically the same terms as secular schools, in order to comply with the Free Exercise Clause?
In today’s decision in Carson v. Makin, the Supreme Court said yes, by a 6-3 vote (following two earlier cases, Trinity Lutheran Church v. Comer and Espinoza v. Montana Dep’t of Revenue, that had pointed in this direction, and distinguishing another earlier case, Locke v. Davey, that pointed in the opposite direction). The government need not have school choice programs, of course; it is free to just fund education at government-run public schools. But if it decides to support private education as well, it must do so without discriminating against religious schools.
Here are excerpts from Chief Justice Roberts’ majority opinion, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett:
[A.] 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 transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” {The Department has stated that, in administering this requirement, 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.”} The question presented is whether this restriction violates the Free Exercise Clause ….
[B.] The Free Exercise Clause … protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits….
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, we considered a Missouri program that offered grants to qualifying 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 entity…. [We 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.” While it was true that Trinity Lutheran 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.” …
[I]n Espinoza v. Montana Dep’t of Revenue (2020), we reached the same conclusion as to a Montana program that provided tax credits to donors who sponsored scholarships for private school tuition…. “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.” …
The “unremarkable” principles applied in Trinity Lutheran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school…. By “condition[ing] the availability of benefits” [on a school’s nonreligious character], Maine’s tuition assistance program—like the program in Trinity Lutheran—”effectively penalizes the free exercise” of religion. {[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.”} …
[C.] A law that [discriminates based on religion, we held in Espinoza, must be subjected to “the strictest scrutiny.” To satisfy strict scrutiny, government action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” “A law that targets religious conduct for distinctive treatment … will survive strict scrutiny only in rare cases.” …
This is not one of them…. [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. Zelman v. Simmons-Harris (2002). Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires. But as we explained in both Trinity Lutheran and Espinoza, 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 exercise.” See also Widmar v. Vincent (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, 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 disc
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