In its recent 6-3 decision in Carson v. Makin, the Supreme Court struck down a Maine law that prevented parents from using state-funded vouchers for their children’s education at religious schools. In most ways, the decision is a modest extension of previous precedents barring government from discriminating on the basis of religion. The case makes clear that states cannot discriminate against religious institutions based on “religious use” of funds, as well their religious “status,” thereby plugging a potential loophole states might have used to exclude religious entities and individuals from various government programs. But that is an essential element of any effective anti-discrimination rule.
Still, many fear that Carson will have dire consequences. Critics have claimed it will exacerbate “religious strife,” undermine the establishment clause of the First Amendment, destroy the separation of church and state, lead states to discriminate against Jewish and Muslim schools, and even empower Christian nationalists. Such concerns are misplaced.
The litigation arose from a Maine voucher program that offers private school tuition subsidies to students residing in areas too lightly populated to have their own public schools. While the program allows subsidies for private schools, it denies them to “sectarian” religious schools, even if they otherwise meet all applicable state standards.
The Supreme Court previously ruled, in the 2020 case Espinoza v. Montana Department of Revenue, that a state-run voucher program may not exclude religious schools merely because of their status as religious institutions. As Chief Justice John Roberts put it in his majority opinion in Carson, “a State violates the Free Exercise Clause (of the First Amendment) when it excludes religious observers from otherwise available public benefits,” merely because they are religious. Thus, a state may not reserve welfare benefits for Christians, while denying them to adherents of other religions, or to secularists. The government is not required to create welfare programs in the first place. But if it does create them, it cannot discriminate among potential recipients based on their faith, or lack thereof. The same point applies to private school vouchers.
In his dissenting opinion, Justice Stephen Breyer argued that the Maine situation is different, because the state discriminated on the basis of “religious use,” not “status” alone. Maine did not withhold vouchers from all religious schools, but merely from those that are “sectarian,” which the state’s Department of Education defined as an institution that “in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” Thus, it is claimed, Maine’s program is constitutional because it bars the use of funds for religious purposes, not merely their distribution to institutions with a religious affiliation.
This “status-use” distinction makes little sense. Almost any religious school “promotes” its faith at least to some extent. Barring “sectarian” schools essentially means barring virtually all religious schools. The status-use theory would readily be rejected in virtually any other context. If, for example, the government denied welfare benefits to people who intend to use some of the money for religious purposes, that obviously would be unconstitutional discrimination. Ditto if the government decided to withhold police and fire department services from a church or synagogue because those services facilitate the use of the building for religious worship.
The court’s decision in Carson does not prevent the state from imposing restrictions on benefit recipients that apply equally to both religious and secular institutions. For example, the state could limit voucher funds to schools that meet state curricular standards, including incorporating material — such as the theory of evolution — that some religious groups object to. But it cannot categorically exclude schools with a religious ethos, while simultaneously including otherwise similar secular institutions. That’s especially true in a program like Maine’s, which imposes few curricular restrictions on participating secular schools.
Despite the limited nature of the ruling, critics claim it will have dire consequences. Some legal scholars argue that it seriously weakens the establishment clause of the First Amendment, which bars the government from facilitating “establishment of religion.” They argue that Carson undermines the anti-establishment principle that “government may not sponsor or fund activities that are specifically religious — worship, religious instruction, and proselytizing.”
While the establishment clause bars targeted government support of religion, it has never been interpreted as requiring categorical exclusion of religious institutions from otherwise generally available government programs. Virtually no one claims that the establishment clause is violated when the federal government awards Pell Grants to students attending religious universities such as Notre Dame and Brigham Young University, even though those schools use some of the tuition money for “specifically religious” activities.
The same point applies to Justice Sonia Sotomayor’s insistence, in her dissenting opinion, that Carson will take the nation “to a place where the separation of church and state becomes a constitutional violation.” No plausible interpretation of “separation of church and state” requires the government to bar religious institutions from generally available government benefits and services. Otherwise, separation is undermined anytime a student uses federally subsidized loans to attend BYU, or a fire department puts out a fire at a mosque.
Washington Post columnist Jennifer Rubin claims Carson advances “the desires of Christian nationalists who seek to use the power of the state to impose their views.” The truth is the exact opposite. Nothing in the court’s ruling requires anyone to send their children to Christian schools or live by Christian views. To the contrary, Carson’s nondiscrimination rule bars discrimination in favor of Christian institutions (or religious institutions generally) no less than discrimination against them. By requiring inclusion of both religious and secular schools in state-funded voucher programs for private institutions, the court empowers parents to choose schools in accord with their values, and minimizes the risk that anyone will be forced into an institution that is inimical to their beliefs.
Some nonetheless fear that school choice programs that include religious schools will bar Muslim and Jewish institutions, particularly in red states. Columnist Wajahat Ali mockingly suggested that programs might be curtailed “if a bunch of Islamic schools now pop up.”
There is indeed extensive Islamophobia in many quarters of the political right (recall Donald Trump’s anti-Muslim travel bans), and antisemitism is also present in our society. Nonetheless, Jewish and Muslim schools have participated on an equal basis in school choice programs around the country, including in red states like Florida, Louisiana and Arizona. Perhaps for this reason, the Council of Islamic Schools of North America and the Union of Orthodox Jewish Congregations of America filed a joint amicus brief supporting the plaintiffs in Carson. When a Louisiana GOP state representative objected to the inclusion of Muslim schools, her efforts to exclude them failed. If a state government did discriminate against Muslim or Jewish schools, Carson would require judges to strike it down.
If some nonetheless worry that state governments will discriminate against minority groups, they should be wary of granting states a monopoly over education curricula for that very reason. Historically, state public education systems have indeed often discriminated against racial, ethnic and religious minorities. Broadly inclusive school choice programs can reduce that risk. While governments can impose some restrictions on participating private schools, they are unlikely to exercise the same kind of comprehensive control as the state has over public institutions. The less you trust conservative state governments (or liberal ones), the more reason you have to support school choice in those states.
In his dissenting opinion, Breyer claims that Carson will exacerbate “religious strife.” But the ruling will actually reduce such conflict. Both liberal and conservative states increasingly seek to impose their respective ideological dogmas through their public education systems. School choice programs that include a wide range of religious and secular options cut back on the extent to which dissenters are trapped in public school systems whose curricular choices trample their values.
Empowering parents to choose between a wide range of religious and secular schools will also enhance educational opportunities for needy students. Research indicates that school choice is often especially beneficial to poor and minority children. Some religious schools, especially Catholic schools, are particularly effective at improving the performance of disadvantaged children.
You need not endorse the views espoused by religious schools (as an atheist, I certainly don’t) to acknowledge their potential benefits to families that choose them. Religious people and secularists alike stand to benefit from a nondiscriminatory school choice system.
Ilya Somin is a professor of law at George Mason University and author of “Free to Move: Foot Voting, Migration and Political Freedom.” While in law school, he worked as a summer clerk for the Institute for Justice, which represented the plaintiffs in Carson v. Makin, and more recently he has written a number of pro bono amicus briefs on their behalf in other cases.