SCOTUS rules that Maine law limiting the state’s tuition assistance program to “nonsectarian” schools is unconstitutional

U.S. Federal


United States


Maine has a tuition assistance program (the “Program”) that allows parents who live in a district where there is no public secondary school to designate a private secondary school that they would like their child to attend. Once a school is designated, the school district transmits payments to the designated school to help defray the costs of tuition. However, participating private schools are required to meet certain requirements in order to participate in the program. Prior to Carson v. Makin, No. 20-1088 (2022), the Program required participating schools to be "nonsectarian".

In Carson v. Makin, No. 20-1088 (2022), the petitioners sought tuition assistance from the Program to send their children to religious secondary schools.  The petitioners sued the commissioner of the Maine Department of Education, alleging that the "nonsectarian" requirement violated the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The District Court rejected the petitioners' constitutional claims and granted judgment to the commissioner. The First Circuit affirmed. 

SCOTUS’ holding

On appeal to the Supreme Court of the United States, the majority of the Court reversed and held that the Program’s nonsectarian requirement for otherwise generally available tuition assistance payments was a violation of the Free Exercise Clause.

Strict scrutiny applies

The majority held that the Manie law prohibiting religious schools from participating in the Program attracted strict scrutiny because it restricted the sectarian school’s participation solely because they were religious.

The Maine law does not survive strict scrutiny

The majority explained that a state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits. The majority held that Maine’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise. Therefore, the majority held that the requirement that a school must be nonsectarian in order to qualify for the Program was unconstitutional.

Justice Breyer’s dissent

Justice Breyer, writing for the minority of the Court in dissent, argued that the majority, in focusing on the Free Exercise Clause, paid almost no attention to the Establishment Clause or to the relationship between the two clauses. Justice Breyer explained that on the one hand, the Free Exercise Clause protects religious observers against unequal treatment. In the education context, this means that states generally cannot bar religious schools from public benefits solely because of the religious character of the schools. On the other hand, the Establishment Clause commands a separation of church and state. This means that a state cannot use its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals. 

Justice Breyer explained that while these clauses are often in tension, they attempt to chart a course of constitutional neutrality. He noted that in applying the clauses, the Court has often said that “there is room for play in the joints” between them. States enjoy a degree of freedom to navigate the clauses' competing prohibitions. This includes choosing not to fund certain religious activity where states have strong, establishment-related reasons for not doing so. And, states have the freedom to make this choice even when the Establishment Clause does not itself prohibit the state from funding that activity. 

Justice Breyer emphasized that the Religion Clauses should be interpreted to advance their historical goal of avoiding religious strife and noted the increased risk of religiously based social conflict when government promotes religion in its public school system. He quoted James Madison and Thomas Jefferson’s concerns regarding compelled taxpayer sponsorship of religion. [Justice Sotomayor did not join in this aspect of Justice Breyer’s dissent.]

Justice Breyer acknowledged that the Court had previously concluded that a state may, consistent with the Establishment Clause, provide funding to religious schools through a general public funding program if the government aid reaches religious institutions only by way of the deliberate choices of individual aid recipients. However, Justice Breyer distinguished the majority’s opinion from this pre-existing principle by the difference between “may” and “must.” Justice Breyer concluded that the Court had never previously held that a state must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education and that nothing in the Free Exercise Clause compels a state to give tuition aid to private schools that will use the funds to provide a religious education. 

Justice Breyer concluded that Maine’s decision not to fund schools providing a religious education falls squarely within the play in the joints between the two Religion Clauses. The Religion Clauses give Maine the ability, and the flexibility, to make the choice that it made.

Justice Sotomayor’s dissent

Justice Sotomayor’s dissent emphasizes the separation of church and state and sets out her concern that the majority has led the nation to a place where the separation of church and state is a constitutional violation. 

July 19, 2022
Carson v. Makin, No. 20-1088 (2022)
Author: Carli Kadish & Magdalena Fish
Federal Courts