How the Supreme Court Should Rule in Carson v. Makin

By: Daniel Wolf

Edited by: Michael Crystal and Patrick Ales

Introduction

On December 8, 2021, the US Supreme Court will hear oral arguments in the case of Carson v. Makin. The case involves a challenge to §2951(2) of Maine state law, which prohibits providing state funds for tuition purposes to “sectarian” schools that use those funds for religious instruction and proselytization.[1] Most of Maine’s school districts--formally called “administrative units”--lack their own public schools. Hence, one state law allows families in such districts to use state funds to send their children to public or private schools within or outside of the state. Three families attempted to utilize this statute to send their children to two separate Christian private schools within the state. However, Maine denied their request because it classified these schools as sectarian. After losing their case in the First Circuit Court of Appeals, the three families filed a writ of certiorari to the Supreme Court. On July 2, 2021, the Supreme Court granted the families’ petition.[2] The Court will be considering whether §2951 (2) of Maine state law violates the Fourteenth Amendment’s Equal Protection Clause or the First Amendment’s Religious Clauses. 

Precedent

An examination of Court precedent and the laws underpinning the case demonstrates that Maine’s law does not violate either the Equal Protection Clause or the Religious Clauses. Numerous past Supreme Court cases serve as precedent for Makin, primarily Locke v. Davey (2004), Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), and Espinoza v. Department of Revenue (2020). 

In Locke, Joshua Davey challenged the constitutionality of the Washington State Promise Scholarship, which provided talented students with scholarship money for college but stipulated that students could not use the funds to obtain a theology degree. Davey argued that the stipulation which prevented an eligible student from obtaining a theology degree violated the First Amendment’s Free Exercise clause. The Court disagreed, ruling that Washington’s program was constitutional because it did not discriminate against religious institutions but rather “a distinct category of instruction.”[3] Furthermore, the Court argued, states have a “historic and substantial interest” in withholding public funds for religious activities, and Washington’s program did not “suggest animus toward religion.”[4] In Locke, the Court began to make a meaningful distinction between institutions’ religious status and their use of public funds for religious purposes. The Court’s ruling implied that it would be unconstitutional for a state to withhold public funding from an institution because it is religious. However, it would be constitutional for a state to withhold public funding if an institution planned on using those funds for religious activities that the state did not want to endorse.[5] 

Comer revolved around a Missouri state law prohibiting the public treasury from providing money “in aid of any church, section or denomination of religion.”[6] The Trinity Lutheran Church of Columbia, Inc. applied for a Missouri state grant that provided money to organizations to assist them in rebuilding playgrounds. However, Missouri denied Trinity’s application based on its law about providing money to religious groups. Trinity argued that this law violated their First Amendment rights. The Court agreed, ruling that it was unconstitutional for a state to exclude churches from an “otherwise neutral and secular aid program.”[7] The program discriminated against recipients based “solely on account of religious identity.”[8] Thus, it was unconstitutional. Here, the Court further solidified the importance of status vs. use regarding the constitutionality of a state’s prohibition on funding religious organizations or activities. 

In Espinoza, the Court made the distinction between status and use even more essential. The case involved a Montana scholarship program that prohibited scholarship recipients from attending religious schools because of a state law that forbids Montana from funding religious schools.[9] Kendra Espinoza filed suit against the law, claiming that it violated the First Amendment’s Religious Clauses. The court concurred, citing Trinity, and again declaring that Montana’s law was unconstitutional because it “impose[d] special disabilities on the basis of religious status.”[10] 

Analysis 

The Court will have to decide what level of scrutiny to apply in Makin. In both Trinity and Espinoza, the Court applied the standard of strict scrutiny. Strict scrutiny is the most rigorous standard of review a court can use when determining the constitutionality of a law that seemingly violates a fundamental right, such as the right to practice one’s religion freely. To pass the strict scrutiny test, a law must “further a compelling government interest” and be “narrowly tailored” to achieve that interest.[11] The Court applied strict scrutiny in Trinity and Espinoza because those cases involved discrimination against an institution based on its religious status.[12] However, the discrimination in Makin is not status-based. Maine’s law does not exclude schools from its free tuition program based on their status as religious institutions. Instead, the law excludes schools that use state funds for religious instruction and proselytization.[13] Consequently, strict scrutiny should not apply in Makin; instead, the rational basis standard should apply. The rational basis test allows a law that seemingly restricts liberty so long as that law furthers a “legitimate state interest” and is “rational.”[14] 

The plaintiffs in Makin argue that Maine’s law violates the Equal Protection Clause of the Fourteenth Amendment because the law unfairly targets religious families, but this is not the case. Maine’s aim to restrict the use of state funds for religious education is “rational” and furthers a “legitimate government interest” because the state has historically excluded religious schools from programs that provide state funds to other public/private schools for a multitude of reasons, including “concentrating…on its goal of providing secular education, avoiding entanglement, and allaying concerns about accountability that…would accompany state oversight of parochial schools.”[15] Because of America’s federalist system of government, states are allowed to determine their own education policies, and, as the First Circuit Court wrote, Maine “has permissibly concluded that the benefit of a free public education is tied to the secular nature of the institution.”[16] 

Maine’s law also does not violate the Religious Clauses of the First Amendment. The plaintiffs argue that Trinity and Espinoza set new precedents that the Court must now follow, but these two cases are easily distinguishable from Makin. The Court sided with the plaintiffs in Trinity and Espinoza because states discriminated against organizations solely based on their religious status in both of those cases. In Makin, however, Maine is only discriminating against schools that use state funds for explicitly religious instruction. Thus, Makin is more akin to Locke than Trinity or Espinoza because of the similarities between the cases. They both relate to the use of state funds for religious purposes, and, as in Locke, Maine’s law does not “suggest animus toward religion.” Instead, it suggests a legitimate state interest in keeping the government disentangled from religion. Since Locke bears far more similarity to Makin than either Trinity or Espinoza, the Court should pay the most attention to the precedent it outlined in Locke.

Conclusion

Maine’s law regarding the use of state funds for religious instruction is constitutional. The law serves a “legitimate state interest” in that it disentangles the state from the church, and it is “rational” because it achieves this interest by preventing state-sponsored religious instruction. Since Makin is distinguishable from Trinity and Espinoza, the Court must focus on Locke. Locke demonstrates that Maine’s law is constitutional because it excludes religious institutions based on their use of state funds and not on their status, and because Maine’s law does not “suggest animus toward religion.” Consequently, Maine’s law does not violate the Establishment Clause or the Religion Clauses.

If the Court were to rule in favor of the plaintiffs, the results could be devastating. The schools where the families involved in Makin wanted to send their children teach its students a thoroughly Christian and Biblical worldview ”[17] Moreover, one of the schools requires teachers to acknowledge that “God recognize[s] homosexuals and other deviants as perverted” and refuses to admit gay children or children who come “from homes with serious differences with the school’s biblical curriculum.” A ruling in favor of the plaintiffs would violate the principle of separation of church and state because it would allow a state to sponsor education promoting religion.[18] Any ruling that erodes the principle of separation of church and state begs a certain question: if a government can pay for students to attend schools that teach religion, why can’t a government eventually start incentivizing religious education? Additionally, a ruling in favor of the plaintiffs could have practical effects on the social justice progress that activists have made in recent decades.[19] A state paying for a student to learn a “Biblical world view” could very well mean a state is funding the teaching of discrimination against people in the LGBTQ community or others. The Court must uphold Maine’s law to affirm the separation of church and state and to prevent state-sponsored discriminatory education.  

Notes:

1. Title 20-A, Maine Revised Statutes, §2951: Approval for Tuition Purposes (1981).

2. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.” The Atlantic. Atlantic Media Company, October 14, 2021. https://www.theatlantic.com/ideas/archive/2021/10/how-carson-v-makin-could-unravel-freedom-religion/620386/

3. Locke v. Davey, 540 U. S. 2 (2004)

4. "Locke v. Davey." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2003/02-1315.

5. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”

6. "Trinity Lutheran Church of Columbia, Inc. v. Comer." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2016/15-577.

7. “Trinity Lutheran v. Comer” Oyez.

8. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 25 (2017)

9. "Espinoza v. Montana Department of Revenue." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2019/18-1195.

10. Espinoza v. Montana Dept. of Revenue, 591 U. S. 2 (2020)

11. “Strict Scrutiny.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/strict_scrutiny.

12. Carson v. Makin, No. 19-1746, 26, (1st Cir. 2020).

13. Carson v. Makin, 37.

14. “Rational Basis Test.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/rational_basis_test.

15. Carson v. Makin, 58.

16. Carson v. Makin, 49. 

17. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”

18. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”

19. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”
    

Bibliography:

Carson v. Makin, No. 19-1746, 26, (1st Cir. 2020).

Espinoza v. Montana Dept. of Revenue, 591 U. S. 2 (2020).

"Espinoza v. Montana Department of Revenue." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2019/18-1195.

Locke v. Davey, 540 U. S. 2 (2004).

“Locke v. Davey." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2003/02-1315.

“Rational Basis Test.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/rational_basis_test.

“Strict Scrutiny.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/strict_scrutiny.

Title 20-A, Maine Revised Statutes, §2951: Approval for Tuition Purposes (1981).

Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 25 (2017).

"Trinity Lutheran Church of Columbia, Inc. v. Comer." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2016/15-577.

Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.” The Atlantic. Atlantic Media Company, October 14, 2021. https://www.theatlantic.com/ideas/archive/2021/10/how-carson-v-makin-could-unravel-freedom-religion/620386/