Carson v. Makin
The Supreme Court ruled that Maine violated the First Amendment by barring religious schools from its tuition assistance program — a program that pays private school tuition for families in rural districts that lack public high schools.
The decision extends a recent line of rulings requiring states that fund private education to include religious schools on equal terms with secular ones, and it may pressure states across the country to revisit similar programs that exclude religious institutions from public benefit programs.
How it got here: A Maine federal trial court ruled for the state; the First Circuit affirmed; the families asked the Supreme Court to hear the case, and it agreed.
The Case in Depth
What happened
Two Maine families living in rural districts without public high schools wanted to use Maine's tuition assistance program — which pays private school tuition when no local public school exists — to send their children to accredited Christian schools. Maine excluded all schools that promoted a religious faith, so the families had to pay out of pocket. Both schools, Bangor Christian Schools and Temple Academy, met every academic requirement for the program except the prohibition on religious instruction.
The question before the Court
Can a state that pays private school tuition for families in rural areas without public high schools refuse to include religious schools in that program?
The Court's answer
Yes — Maine's exclusion of religious schools violated the Free Exercise Clause. When a state opens a public benefit to a wide range of private organizations, it cannot cut out religious ones solely because they are religious. The Court had applied that rule in 2017 (striking down Missouri's playground-grant exclusion of a church-run child-care center) and 2020 (striking down Montana's exclusion of religious schools from scholarship funds). Excluding Maine's religious schools triggered strict scrutiny — the most demanding constitutional test — which Maine's program could not survive.
Maine tried two counterarguments. It reframed the benefit as a "secular public education," making religious exclusion seem logical — but the Court said this was a roundabout restatement of the same exclusion, since private schools in the program differed from Maine public schools in nearly every way except being secular. Maine also argued it was targeting religious use of funds rather than religious identity — but the Court held that use-based discrimination violates the Free Exercise Clause just as much as status-based discrimination does. A religious school cannot be penalized for the faith-integrated teaching that defines it.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Families in rural areas who want to send their children to religious schools may now be able to access state-funded tuition benefits previously limited to secular private schools. States with similar tuition assistance or voucher programs that exclude religious schools will need to revise those programs or face constitutional challenges under the Free Exercise Clause.
What changes now
The case goes back to the lower courts for further proceedings consistent with the Supreme Court's ruling. Maine must now allow qualifying religious schools to participate in its tuition assistance program on equal terms with secular private schools. Maine could also restructure its program entirely — for example, by expanding its own public school system, improving transportation, or offering tutoring and remote learning — to avoid the constitutional problem. How this ruling will affect similar programs in other states will be worked out in future cases.
What this does not decide
The ruling does not decide whether Maine could deny tuition payments to specific religious schools because of their discriminatory admissions or hiring policies — the case involved only Maine's blanket exclusion of all religious schools, not a targeted one. It also does not address whether school districts can contract directly with a specific religious school to educate their students.
Concurrences and dissents
Dissent — Justice Breyer
Justice Breyer argues the majority ignores the Constitution's recognized 'play in the joints' between the two Religion Clauses — a space allowing states to decline funding for religious activity even when the Establishment Clause does not require them to. Maine's exclusion targets what schools will do with the money (teach religion), not just their religious identity, making it closer to Locke v. Davey than to the cases the majority relies on. Breyer also warns that compelling Maine to fund religiously integrated schools risks the kind of religion-based social conflict that the First Amendment was designed to prevent.
Dissent — Justice Sotomayor
“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”Justice Sotomayor's opening line, arguing the ruling is the latest step in eroding First Amendment limits on government funding of religion.
Justice Sotomayor argues the Court should not have started down this road with Trinity Lutheran in 2017, and the current decision eliminates the last remaining guardrail — the distinction between excluding schools based on religious status versus religious use — that had preserved some space between the two Religion Clauses. She warns that the ruling forces Maine to fund schools that openly discriminate based on gender identity, sexual orientation, and religion, and finds it especially troubling that the Court requires states to fund religious instruction as part of an obligation — public education — that the Establishment Clause has always required to be religiously neutral.
How the Court got there
The legal reasoning, step by step
- The Free Exercise Clause bars states from withholding generally available public benefits from religious organizations solely because of their religious character — not just outright bans on worship, but indirect penalties and conditions on benefits too. The Court had recently applied this in Trinity Lutheran (2017), striking down Missouri's refusal to let a church-run child-care center compete for playground safety grants, and in Espinoza (2020), striking down Montana's bar on using private-school scholarship funds at religious schools.
- Maine's tuition assistance program made payments available to a wide range of accredited private schools. By excluding religious schools 'solely because of their religious character,' the program fell squarely into the pattern condemned in those earlier cases, triggering strict scrutiny — the most demanding constitutional test, requiring both an extremely important government interest and the most narrowly tailored means of achieving it.
- Maine argued the real benefit was a secular public education, making religious exclusion seem logical. The Court rejected this: the statute offers tuition at 'the public school or the approved private school of the parent's choice,' with nothing requiring a 'public' education. Participating private schools differ from Maine public schools in almost every important way — selective admissions, higher tuition, and different curricula. Calling the benefit 'secular education' was simply a roundabout way of restating the exclusion itself.
- Maine also argued its exclusion was based on religious use of funds (teaching religion) rather than religious status (being affiliated with a religion) — a distinction it claimed put the case outside Trinity Lutheran and Espinoza. The Court rejected this: those cases never suggested use-based discrimination was permissible, and educating students in their faith is inseparable from what a religious school fundamentally is. Excluding schools for integrating faith into instruction is excluding them because they are religious schools.
- Maine invoked Locke v. Davey (2004) — in which the Court upheld Washington State's refusal to let scholarship funds pay for a college degree specifically designed to train ministers — as authority for withholding funds based on religious use. The Court distinguished Locke as resting on a narrow 'historic and substantial' tradition against taxpayer-funded clergy, for which there is no comparable tradition when it comes to supporting religious schools generally. Locke cannot be stretched into a broad license to exclude religious people from public benefits whenever the state believes they will use the money for religious purposes.
- Maine's remaining justification — an interest in stricter separation of church and state than the federal Constitution requires — could not satisfy strict scrutiny. Both Trinity Lutheran and Espinoza had already held that a state's desire for greater distance from religion than the First Amendment demands is not a compelling enough interest to justify denying religious organizations benefits available to everyone else. Maine's antiestablishment interest therefore fell short, and the 'nonsectarian' requirement could not stand.
Doctrinal impact
Cases affected by this decision
Reaffirms Trinity Lutheran Church of Columbia, Inc. v. Comer
Confirms states cannot exclude religious organizations from generally available public benefits solely due to religious character.
Reaffirms Espinoza v. Montana Department of Revenue
Confirms that when states fund private school tuition, they cannot exclude religious schools solely because they are religious.
Distinguishes Locke v. Davey (540 U. S. 712)
Locke's narrow ruling about funding ministry training does not authorize broad exclusions of religious schools from public benefits.