Dave and Amy Carson with their daughter at Bangor Christian Schools in Maine. The Carsons are one of three families that sued Maine over a program that bans families from an otherwise generally available student-aid program if they choose to send their children to schools that teach religion. (Photo by the Institute for Justice www.ij.org.)
Dave and Amy Carson with their daughter at Bangor Christian Schools in Maine. The Carsons are one of three families that sued Maine over a program that bans families from an otherwise generally available student-aid program if they choose to send their children to schools that teach religion.

The Blaine Amendments’ long, painful death continues. Carson v. Makin provided an opportunity for the court to inter them fully but it declined to so. Instead, the Court’s reasoning announced today essentially means that the infamous amendments, which forbid states from using public funds to support religious institutions, almost always violate the Free Exercise Clause of the First Amendment—but given what the court declined to say, Blaine could potentially survive in extremely limited circumstances.

The Supreme Court initially began its slow-motion execution of Blaine Amendments in 2017’s Trinity Lutheran v. Comer, which held that Missouri’s rejection of a religious school’s grant application to resurface a playground because of the state’s Blaine Amendment was unconstitutional. However, the 7-2 majority said that it was so because of discrimination solely based on the religious status of the school. Potentially, discrimination based on religious use could be possible. Then, in 2019’s Espinoza v. Montana, the court ruled that excluding religious schools from a tax credit scholarship program also constituted unconstitutional discrimination based on religious status.  Singling out citizens and institutions from a general program solely because they happen to be religious violated longstanding principles that religious believers cannot be excluded from receiving otherwise available benefits. After this, the status versus use distinction was clearly on life-support. Today the court reduced the flow of oxygen without completely cutting it off.

The issue in Carson v. Makin was a 1982 Maine law that excluded religious schools from the state “tuitioning system,” which pays for students to attend private schools (Maine does not have a Blaine Amendment). Maine’s rural character means that a majority of its school districts do not have secondary schools. To ensures that all students can attend high school, the state has paid for students to attend either another public school or a private school of their choice—which included religious schools until that 1982 law was enacted. Citing Trinity Lutheran and Espinoza, a First Circuit panel, which included retired Supreme Court Justice David Souter, upheld Maine’s law, saying that it discriminated based on religious use and not status because religious schools could participate as long as they offered a non-sectarian education. This reasoning simply illustrated that the distinction between status and use was inherently unstable, since it really meant that religious schools could avoid being discriminated against as long they were not religious.

In a 6-3 decision for the court, Chief Justice Roberts—joined by Thomas, Alito, Kavanaugh, Gorsuch, and Barrett—did not eliminate the status versus use distinction but severely eroded it. Roberts concluded that simply labeling a restriction on funding to religious schools “use”-based did not offer it constitutional immunity. Instead, use-based restrictions also constitute religious discrimination and therefore must satisfy strict scrutiny: they must serve a compelling government interest and be narrowly tailored. This program did not meet that standard. He concluded that “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 discrimination against religion. A State’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.”

Importantly, however, Roberts did not eliminate the status-use distinction, leaving open the possibility that some forms of use-based discrimination could survive. For instance, he pointed out that the court had previously upheld a use-based restriction in Locke v. Davey (2004) as a very narrow exception based on the state’s interest in not subsidizing the training of clergy. But Locke, he said, “cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.”

Roberts also made certain to emphasize, as he did in Espinoza, that a state does not have to subsidize private education—but that once it does it must do so on a religiously neutral basis. That assurance, however, did not satisfy the dissenters, particularly Justice Breyer, who was joined by Kagan and Sotomayor. Continuing the same arguments Breyer made in his dissent in Espinoza, he argued that there is really no way to limit the majority’s reasoning saying, “We have never previously held what the Court holds today, namely, 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.” He then asked if school districts must now provide “equivalent funds to parents who wish to send their children to religious schools?” and whether “school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”

Justice Sotomayor also offered her own dissent that was not joined by Breyer or Kagan. She simply bemoaned the fact that the court even “started down the path” it did in Trinity Lutheran and was continuing, in her view, “to dismantle the wall of separation between church and state that the Framers fought to build.”

What does this decision mean going forward? In particular, this ruling will make it more difficult to refuse to allow religious organizations to run charter schools, even ones that want to provide explicitly religious instruction. That would seem to deny a generally available benefit on the basis of religion that could not survive today’s more limited understanding of constitutional use-based restrictions. Certainly, states and school districts that offer support for private schools will be hard-pressed to deny support to religious schools unless they happen to be the odd k-12 school that exists to train ministers. However, one could expect those that do deny that funding to come up with more elaborate use-based justifications. One should also expect litigation based on Breyer’s questions. Cabining the majority’s reasoning would seem to be difficult. But that also forces one to ask if Chief Justice Roberts, in his minimalist mode, is not confirming Zeno’s Paradox. Each decision, starting with Trinity Lutheran and continuing through today’s, takes a step towards eliminating Blaine Amendments, but the court never seems to get all the way there.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

Last updated June 21, 2022