Following up on Carson v. Makin

A key First Amendment case progresses; addresses government funding for churches and church schools

Church Executive has been following the recent string of Supreme Court cases which are sorting out the First Amendment guardrails defining the extent to which church schools and other church-affiliates are entitled to participate in government tuition and other subsidy programs.

As churches play an increasingly important role in their communities filling the void created by cutbacks in school and other publicly funded programs, their entitlement to full participation has become more and more important.

Two months ago, we flagged the most recent case in this series, and the oral argument in that case has just been held at the Court.

It is often a fool’s errand trying to predict how the Court will come out solely on the basis of the Justices’ questions and commentary during oral argument. However, after analyzing the December 8 oral argument, the experts seem to be pretty confident that the six Justices in the so-called “conservative majority” on the Court have all declared their colors and will vote to strike down the Maine program being challenged in Carson v. Makin.

At the same time, though, the experts are hedging their bets as to whether the decision will have the broad reach that some of the Justices seem to want — i.e., government funding programs can never discriminate against church schools and other church affiliates, regardless of how the funds are used. Or will it be a narrow decision based on legal technicalities and not reaching beyond the particular facts of the Maine program?

This might come down to a test of Chief Justice Roberts’ clout and whether he can persuade at least some of the other conservatives to accept his go-slow approach toward changes in the Court’s interpretation of the Bill of Rights. He might press for a narrow, facts-of-the-case rationale in reversing the lower court’s decision rather than a broad order which could be troublesome down the line in cases where the facts are extreme.

In particular — and echoing what Justice Roberts said in his majority opinion in Espinoza — it continues to be appropriate to use a case-by-case approach here and say that a government program which treats a religious organization differently from a secular organization is subject to the “strictest scrutiny” and will be allowed to stand only if there is a “compelling government interest” justifying the different treatment. In other words, it will be tough to justify treating church schools and other church affiliates differently, but not impossible.

In a nutshell, the Maine program provides tuition subsidies for high school students to attend private schools if there is no local public high school available to them, but not if the subsidies would be used to attend a “sectarian” school where religious instruction is part of the curriculum. Two families filed suit to challenge the Maine program on the ground that it violates the Free Exercise Clause of the First Amendment, contending that a family cannot be penalized for choosing to send a child to a church-affiliated school where religious instruction is included. That kind of hostility toward the free exercise of religion is an impermissible discrimination under the First Amendment, they argued, and tuition subsidies should be allowed regardless of any church affiliation or any religious instruction.

Maine countered — and the lower court agreed — that the prohibition against subsidies for a “sectarian” education was permissible (and perhaps even mandatory, to avoid violating the Establishment Clause), as a government’s direct support of religious education would get the government directly into the business of supporting religion. The Supreme Court’s recent decisions in Trinity Lutheran and Espinoza were viewed by the lower court as not applying because those cases don’t address the “use” of government funding for a religious purpose. So, those cases don’t speak to the Maine program where government funds would be used to pay for a sectarian education and therefore would “directly” support religion.

This distinction based on how government funding is “used” might seem to be much ado about nothing, but it goes to the heart of the tension between the Free Exercise Clause and the Establishment Clause and the recent tendency of the Supreme Court to chip away at the Establishment Clause’s barrier between church and state in favor of allowing churches to participate fully in government funding programs. This evolution could turn out to be critically important for church schools and other church affiliates, perhaps in the context of the trend seen in many states to fund charter schools as an alternative to public schools. A far-reaching decision in Carson v. Makin could allow church-affiliated schools to participate in charter school programs alongside non-sectarian schools.  Currently, that participation generally is not allowed, as it is thought to be impermissible under the First Amendment as an “establishment” of religion. However, broad brushstrokes in the Makin decision could open the door to full participation by church-affiliated charter schools.

We’ll all have to wait and see what the Supreme Court decides in Carson v. Makin and whether it’s a far-reaching decision or a narrow, fact-based decision which falls short of laying down a broad principle of general applicability. And if the Court’s decision involves multiple dissenting and concurring opinions — as has been true in the earlier cases in this series — we might have to wait until the very end of the Court’s term in late June or early July.

At that time, we will have the benefit of Kimberlee Norris’s expertise, when she can sort through the complicated threads for all of us and give us her judgment as to what the Carson v. Makin decision means for church schools and other church-affiliated programs.

In the meantime, here’s a link to Amy Howe’s excellent review in SCOTUSblog of Carson v. Makin and her take on the oral argument earlier this month.

— The Church Executive editors



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