On June 21, 2022, the Supreme Court issued a landmark ruling in Carson v. Makin in which it prohibited government from excluding religion from generally available funding programs. The case addressed Maine’s tuition assistance program. Over half the school districts in Maine do not have their own secondary schools. To solve this problem, Maine allows parents in those districts to select an approved private school where the state pays tuition on the student’s behalf. However, Maine expressly excludes “sectarian” schools from receiving such payments, even if they satisfy all the criteria for being an approved school.
The Court deemed the exclusion of religious schools unconstitutional. In the Court’s words, “[t]he State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion.”
Question: What did the Supreme Court’s decision say?
Answer: Anytime you have a state or federal funding program that has secular goals and is open to private institutions, you cannot exclude religious institutions.
Question: How is that different from prior Supreme Court decisions?
Answer: Until now, governments could exclude religious institutions from funding programs if the money was being used towards religious activities. Now, so long as a religious institution is eligible under the terms of a funding program, government can’t refuse to provide the funding simply because the religious institution wants to use that funding on a religious activity.
Question: Doesn’t government funding of religious activity violate the separation of church and state?
Answer: No. Government is allowed to provide funding for a secular purpose so long as it remains neutral toward religion when doing so. That means government can’t prefer religious institutions when it comes to funding. But it also means if a religious institution is eligible for funding, then it must be afforded the opportunity to receive that funding on the same terms as any non-religious institution.
Question: Why is this such a big deal?
Answer: In the past, government officials could avoid including religious institutions in grant programs by arguing that the funds would be used for religious activities. Now, so long as the funding is provided on neutral terms, religious institutions must have the same funding opportunities afforded to them as non-religious institutions.
Question: Can you give me an example?
Answer: Sure. If a state creates historic preservation grants, then it must make those funds available to both religious and non-religious institutions alike. And that is true even if the funds are used to fix the active sanctuary of a synagogue so long as the synagogue is receiving those funds based on secular and neutral criteria—that is, the synagogue is receiving those funds because it has historical value, not because it has religious value.
Question: Does this mean states must create voucher programs?
Answer: No. If a state chooses to only fund public schools, then it does not need to provide funding for private schools. What a state cannot do, however, is make funding available for private schools but exclude religious schools.
Question: How does this impact current ground-breaking programs like government funding for STEM teachers at private schools?
Answer: It not only further insulates those programs from judicial challenge, but opens the door for expanding those programs to other categories of teachers.
Question: So what should we do?
Answer: State-by-state advocacy becomes more important than ever. To secure funding for religious institutions, religious communities must partner with other communities to create new funding programs. Once funding programs are made available for private schools, states can no longer exclude religious schools from those funding programs. Put simply, advocacy and partnerships are more essential than ever.