Supreme Court of The United States

Supreme Court of The United States (SCOTUS): While deciding the instant petition wherein the Maine Department of Education (hereinafter the Department) was sued for instituting a requisite for schools to be “nonsectarian” in order to be eligible for tuition assistance; the SCOTUS, with a ratio of 6: 3 held that the ‘non-sectarian requirement’ for tuition assistance payments is violative of the First Amendment’s Free Exercise Clause.   


Facts of the Case: The State of Maine had enacted a program of tuition assistance for parents who live in school districts which – neither operate a secondary school of their own nor contract with a particular school in another district. Under this program, parents designate the secondary school they would like their children to attend, and the school district transmits payments to that school to help meet the cost of tuition.  

The private schools under the program should meet certain criteria to be eligible to receive tuition payments. The requirement includes either accreditation from the New England Association of Schools and Colleges (hereinafter NEASC) or approval from the Maine Department of Education. However, since 1981, Maine has limited the tuition assistance payments to “nonsectarian” (secular) schools.    

The petitioners sought tuition assistance to send their children to Bangor Christian Schools (BCS) and Temple Academy. Although both schools are accredited by NEASC, they however, do not qualify as “nonsectarian” and are thus ineligible to receive tuition payments under Maine’s tuition assistance program.   


Observations by the Majority: The majority opinion was delivered by John Roberts, CJ., in which Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, Samuel Alito and Amy Coney Barrett, JJ., joined. 

  • Agreeing with the petitioners that their rights under US Constitution’s First Amendment have been violated the Department’s “nonsectarian requirement”, the majority observed that the SCOTUS in several precedents, had already decided that discrimination/ prohibition/ restriction based on religion is a contravention of the First Amendment’s Free Exercise Clause.  
  • Referring to the decisions in Trinity Lutheran Church of Columbia, Inc. v. Comer, Director, Missouri Department of Natural Resources, 2017 SCC OnLine US SC 86, and Espinoza v. Montana Department of Revenue, 591 U. S., the Court observed that Maine offers its citizens a benefit in the form of tuition assistance payments for any family whose school district does not provide a public secondary school. However, any eligibility criteria which disqualify any private school solely because they are religious, must be subjected to “strictest scrutiny”. 
  • The majority observed that if Maine’s “nonsectarian requirement” is scrutinized, then it won’t survive because a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. “Maine’s decision to continue excluding religious schools from its tuition assistance program thus promotes stricter separation of church and state than the Federal Constitution requires. But 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”.     
  • It was further observed that Maine’s administration of this benefit is subject to the free exercise principles governing any public benefit program, including the prohibition on denying the benefit based on a recipient’s religious exercise.  


The Dissent: Stephen Breyer, J., delivered his dissenting opinion in which Elena Kagan, J., joined. Justice Sonia Sotomayor also filed her dissenting opinion.  

  • The dissenting Judges observed that the majority Judges ignored the “play in the joints” between the Clauses of the First Amendment, which gives States some degree of legislative leeway and sometimes allows a State to further anti-establishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion.  
  • The Judges pointed out the increased risk of religiously based social conflict when government promotes religion in its public school system. “People in our country adhere to a vast array of beliefs, ideals, and philosophies. And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division. The Religion Clauses were written in part to help avoid that disunion”. It was also observed that a “rigid, bright-line” approach to the Religion Clauses is an approach without any leeway or “play in the joints” and this will too often work against the Clauses’ underlying purposes.  
  • It was observed that Maine chooses not to fund only those schools that “‘promote the faith or belief system with which the schools are associated and/or present the academic material taught through the lens of this faith” i.e., schools that will use public money for religious purposes. Maine thus excludes schools from its tuition program not because of the schools’ religious character but because the schools will use the funds to teach and promote religious ideals.  
  • The dissenting Judges stated that in order to decide the instant issue, it is important to observe the differences between religious education and a purely civic, public education- the connection that religious institutions draw between their central purpose and educating the young in the faith is so close that teachers employed at such schools, often act as ministers. Whereas, public schools first and foremost, seek to provide a primarily civic education. “Maine legislators who endorsed the State’s nonsectarian requirement recognized these differences between public and religious education. They did not want Maine taxpayers to finance, through a tuition program designed to ensure the provision of free public education, schools that would use state money for teaching religious practices” 
  • Maine’s nonsectarian requirement is constitutional because it supports the Religion Clauses’ goal of avoiding religious strife. Forcing Maine to fund schools that provide religiously integrated education creates a similar potential for religious strife as that raised by promoting religion in public schools. “The Religion Clauses give Maine the right to honor that neutrality by choosing not to fund religious schools as part of its public-school tuition program. I believe the majority is wrong to hold the contrary”.  


Sonia Sotomayor, J., in her dissenting opinion, observed that the majority’s decision will dismantle the wall separating church and state that the Framers fought to build. She also noted that the majority decision leads America to a place where separation of church and state becomes a constitutional violation. “If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic anti-establishment interests more than this Court does will have to curtail the support it offers to its citizens”.   

[Carson v. Makin, No. 20–1088, decided on 21-06-2022]   

*Sucheta Sarkar, Editorial Assistant has prepared this brief. 


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