Prediction Post: Carson v. Makin
By Trinity Gates — February 11, 2022
Carson v. Makin, argued on December 8th, 2021 before the Supreme Court, asked the Court to weigh in on whether Maine violates the Equal Protection Clause as outlined in the U.S. Constitution by prohibiting students from using state-provided aid to attend schools that offer sectarian instruction.
This case challenges a Maine program that pays for some students to attend private schools. Two families who wanted to send their children to Christian (sectarian) schools argue that the state’s program — which excludes schools offering religious instruction — violates the Constitution. The decision in this case will impact public funding for religious education across all fifty states.
Maine argues that the tuition-assistance program is meant to replicate public education. It claims that funding only non-sectarian schools is not “motivated by hostility to religion,” but rather rooted in the belief that “public education is defined by inclusion and tolerance, and reflective of the diversity of our students and our community.”
However, the schools that the Carsons and Nelsons wish to send their children to — Bangor Christian and Temple Academy — reportedly only hire born-again Christians and do not hire or admit LGBTQ individuals, which conflicts with Maine’s definition of public education.
The challengers argue that Maine’s exclusion of religious schools is unconstitutional because it is not neutral toward religion nor generally applicable. They believe barring students from using aid due to religious affiliation constitutes discrimination.
At the center of Carson v. Makin lies the Establishment Clause, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
Precedent cases to consider include:
- Lemon v. Kurtzman (1971) – laws must avoid “excessive entanglement” with religion
- Engel v. Vitale (1962)
- Espinoza v. Montana Department of Revenue (2020)
- Trinity Lutheran Church of Columbia v. Comer (2017)
ULRAG Member Predictions
“Considering that the Court has a conservative supermajority, I think it's likely that a majority of the Justices will rule that states cannot exclude state funding for religious schools, even those that are openly anti-LGBTQ+. The rationale behind such a decision would possibly be that religious schools cannot be excluded from state funding, while other private schools can receive funding, simply because they are religious.”
“There is a multitude of factors that play into deciding this case ranging from freedom of religion to government funding of private schools. Primarily, I believe the Court must heavily consider the effect the decision will have on the future interpretation of the Establishment Clause and the Free Exercise Clause... Due to the current composition of the Court and the precedent that these two cases encompass, I believe the Court will side with Carson, holding the Maine law to be unconstitutional.”
“Currently, I expect that the conservative makeup of the Court will have a large influence in the decision of this case. However, I believe that allowing a decision that would make funds available to sectarian schools would be harmful to public policy... Maine’s aid program limits aid to non-sectarian schools, aiming to provide a free education that is equivalent to that of public education... The court siding with Carson would result in a precedent that would unjustly affect education in Maine, and across the country.”