In Carson v. Makin, the U.S. Supreme Court struck down a Maine law that prohibited state funds from being used to teach a religious curriculum in its state voucher program. The Court extended a doctrinal line of cases regarding “discrimination against religion.” The new doctrinal line expands the Free Exercise rights of religious institutions while narrowing—and arguably overturning—historical precedents protecting individuals under the Establishment Clause.
In her dissent in Carson v. Makin, Justice Sotomayor wrote, “[t]his Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” Justice Sotomayor’s opening sentence references the extensive history that the Court chose to ignore. The effort to disestablish church and state pre-dates the Revolutionary War and was part of a movement known as “voluntaryism,” which held that any support for religious institutions be voluntary from individuals and not derived from taxes.
Virginia’s experience provides an example. After the Revolutionary War, then-Governor Patrick Henry championed legislation to provide financial support to religion in Virginia. He argued that the support was necessary to help former soldiers transition back into moral, productive citizens. At that time, Episcopalians were the established church in Virginia. However, lacking the votes to pass the legislation, debate ensued about how to include some faiths, but exclude others in a model called “multiple establishment.” It was a fool’s errand. Consensus could not be reached on which doctrines would be “state approved” and entitled to funding and which ones would not.
Meanwhile, James Madison and Thomas Jefferson rallied their Baptist and Presbyterian allies against Henry’s legislation. They argued that no state support should go to any religious institution, and that the only way to truly be religiously free was to disestablish church and state. Their campaign not only killed Henry’s legislation, but ultimately would lead to the passage of Thomas Jefferson’s Bill for Establishing Religious Freedom and a prohibition on state aid to religion in the Virginia Constitution. When Madison drafted the Bill of Rights, and the First Amendment’s Establishment Clause, his experience in Virginia was the model.
Throughout the 19th century, we continued to disestablish church and state. As public school systems rose, the old model of publicly subsidized, but privately run parochial systems were dismantled. They caused too much local conflict. State by state passed “no aid” provisions in their state constitutions, including Art. 1, Sec. 7, of the Texas Constitution. By the time a case named Everson v. Board of Education reached the Supreme Court in 1947, a super majority of states had “no aid” provisions in their state constitutions.
In Everson, the Supreme Court decided that “no tax in any amount, large or small, can be levied to support any religious activities or institutions.” Everson was not blazing new territory, but rather extending the Establishment Clause’s “no-aid” protection to a small minority of states that had not fully disestablished. This principle of law remained—for the most part—throughout the 20th century.
In 2002, the Supreme Court began eroding disestablishment. In a case called Zelman v. Simmons-Harris, a 5-4 majority upheld a state voucher program in Ohio. Despite the precedent of “no aid,” the Court reasoned that a voucher program was permissible so long as it was “neutral” toward religion, and there was a real choice for parents between a religious and secular private education. In 2004, the Court then clarified that state constitutional amendments could provide greater anti-establishment protections than the U.S. Constitution required in Locke v. Davey.
Despite the Supreme Court upholding state anti-establishment constitutional provisions just a decade earlier, the Court began blazing down a new legal trail in 2017. In a case called Trinity Lutheran v. Comer, the state of Missouri created a state program to assist nonprofits refurbish old playgrounds. State law prohibited funds going to assist houses of worship. Trinity Lutheran sued, and the U.S. Supreme Court found the state’s law constituted “status-based religious discrimination.” While the majority noted that this case was only about playgrounds, this case began “the dismantling” of Jefferson’s wall of separation to which Justice Sotomayor alluded.
In 2020, the state of Montana enacted a school voucher program. The Montana Constitution, however, had a “no aid” provision prohibiting state funds from being used in sectarian schools. In Espinoza v. Montana, the U.S. Supreme Court extended Trinity Lutheran and said that the Montana Constitution constituted “status-based religious discrimination.” Effectively, the U.S. Supreme Court overturned Locke v. Davey, and quite possibly the constitutional provisions of 38 other states, including Texas.
Carson takes the doctrine of “discrimination against religion” even farther. The right to participate in a program does not necessarily mean that the participants would be free from state regulation of that program. However, in Carson v. Makin, the Court said there was no difference between “status-based discrimination” and “use-based religious discrimination.” In other words, the Court ruled that a religious school could not be excluded based on the curriculum.
How far does Carson go? Subsequent litigation will provide greater clarity. However, there is little in Carson to give individuals much hope that the Court will allow government to regulate in order to prevent discrimination by religious institutions participating in state benefit programs. While Carson was about schools, there is no logical impediment to extending the ruling to foster care programs, adoption programs, or disaster relief programs.
Additionally, while Carson was about curriculum, there is no logical impediment to extending the ruling to other discriminatory actions framed as a matter of faith by religious institutitons. For instance, we have already seen discrimination by religious providers against individuals of other faiths in foster care and adoption programs and in faith-based disaster relief agencies.
Finally, a criticism of Carson is that it now extends greater constitutional protections to religious institutions than religious individuals. The religious schools in Maine actively exclude teachers and students that are of other faiths such as Jews, Muslims, or LGBTQ affirming Christians. Those taxpayers of other faiths are now denied access to the public benefit provided by the state. After Carson, the government now has the power to tax a Jewish family, give that money to an evangelical school, and the evangelical school has a constitutional right to refuse to admit a Jewish student.