Carson v. Makin

The case was brought by families objecting to the fact that Maine's school choice program excludes religious schools. In Maine, state law authorizes school districts that do not operate their own high schools to provide tuition payments that allow families to select the school of their choice, as long as the school is not a religious school.

On September 10, 2021, CLS filed an amicus brief on behalf of ten other religious or private school organizations. The brief urges the Court to require Maine to treat all Maine parents and children fairly, including those who choose religious schools. Professors Tom Berg and Doug Laycock wrote the brief with the assistance of the students at the Religious Liberty Appellate Clinic at the University of St. Thomas (Minnesota) School of Law. Professors Berg and Laycock had also filed an amicus brief in March of 2021 urging the Supreme Court to review the case.

The Supreme Court heard oral arguments in December 2021, regarding whether the Maine law that discriminates against religious families violates the Free Exercise Clause. SCOTUSblog has an excellent overview of the oral arguments.

On June 21, 2022, the U.S. Supreme Court ruled that Maine’s tuition assistance program violated the Free Exercise Clause because it excluded religious schools from the program, overturning the previous U.S. Court of Appeals ruling. In a 6-3 decision by Roberts, and joined by Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, the Court held that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.

"The state pays tuition for certain students at private schools – so long as the schools are not religious," Roberts wrote. "That is discrimination against religion."

In so ruling, the Court held that Maine’s program could not survive strict scrutiny, and that the principles the Court applied in Trinity Lutheran Church of Columbia v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020) resolved the case at hand. The Court found that Maine’s antiestablishment interest did not justify excluding members of the community from an otherwise generally available public benefit simply because of their religious exercise. The Court also found unpersuasive the First Circuit’s attempt to distinguish between religious status prohibitions and the religious use prohibition, noting instead that the prohibition on status-based discrimination under the Free Exercise Clause does not justify use-based discrimination.