In June 2022, the U.S. Supreme Court held in Carson v. Makin that Maine violated the Free Exercise Clause of the First Amendment by excluding religious schools from a private-school-choice program—colloquially known as “town tuitioning”—for students in school districts without public high schools. Writing for the majority, Chief Justice John Roberts concluded that “the State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”
Carson was, in some ways, unremarkable. For the third time in five years, the court held that the Constitution prohibits the government from excluding religious organizations from public-benefit programs, because religious discrimination is “odious to our Constitution.” But the fact that Carson was not groundbreaking does not mean that it is not important. On the contrary, Carson represents the culmination of decades of doctrinal development about constitutional questions raised by programs—including parental-choice programs—that extend public benefits to religious institutions. Among the most important of these questions is whether there is “play in the joints” between the First Amendment’s religion clauses—the Free Exercise Clause and the Establishment Clause—that might permit government discrimination against religious institutions in some situations. Going forward, the answer in almost all cases is likely to be no. Both clauses, the court has now made clear, require government neutrality and prohibit government hostility toward religious believers and institutions. (The court clarified—but did not overturn—its 2003 decision in Locke v. Davey. In that case, the justices upheld, by a vote of 7–2, a Washington State law prohibiting college students from using a state-funded scholarship to train for the ministry; that law, the court ruled, did not violate the Free Exercise clause. Arguably, Carson narrows and effectively confines Locke to its facts by characterizing it as advancing only the “historic and substantial state interest” against using “taxpayer funds to support church leaders.”)
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Nicole Stelle Garnett is the John P. Murphy Foundation professor of law at University of Notre Dame and an adjunct fellow at the Manhattan Institute.
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