Carson v. Makin Important Passages

But first, an excerpt from a recent law review article of mine on school choice and the First Amendment: 

Maine is the most rural state in America. Many of Maine’s rural areas are too small to operate a public high school. Thus, Maine law provides that in such rural areas, local government shall pay the tuition at “the approved private school of the parent’s choice.” Parents may choose any private school, whether “inside or outside the State.” However, there is a catch: tuition assistance payments may only be directed to “nonsectarian” schools. Alan and Judy Gillis of rural Orrington, Maine, explained how it feels to be excluded from educational benefits because you choose to educate your children in a private religious school: “We feel discriminated against because of our religious convictions[.] . . . If our neighbors have the freedom to choose a private school and receive tuition from our town, why are we denied this same benefit just because we desire a religious education for our daughter?”

Why indeed?

 1. "Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” The question presented is whether this restriction violates the Free Exercise Clause of the First Amendment." (p.1)

2. The Court says Trinity Lutheran and Espinoza control:  "But as we explained in both Trinity Lutheran and Espinoza, such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution . . . ‘cannot qualify as compelling’ in the face of the infringement of free exercise.” Justice Breyer stresses the importance of “government neutrality” when it comes to religious matters,  but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion. A State’s anti-establishment interest does not justify enactments that exclude some members of  the community from an otherwise generally available public benefit because of their religious exercise." (p. 4, just before III)

3. And notice that the status/use distinction is no more: 

Our opinions in Trinity Lutheran and Espinoza, however, have already explained why Locke can be of no help to Maine here. Both precedents emphasized, as did Locke itself, that the funding in Locke was intended to be used “to prepare for the ministry.” Funds could be and were used for theology courses; only pursuing a “vocational religious” degree was excluded.Locke’s reasoning expressly turned on what it identified as the “historic and substantial state interest” against using “taxpayer funds to support church leaders.” But as we explained at length in Espinoza, “it is clear that there is no ‘historic and substantial’ tradition against aiding [private religious] schools comparable to the tradition against state-supported clergy invoked by Locke.”  Locke cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.

 Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. (p.4-5)