Carson v. Makin, 596 U.S. 767

Background

Maine pays tuition for students in school administrative units (SAUs) that do not operate or contract for a public secondary school; parents choose the school (public or private) and the SAU pays tuition up to a cap.
Private schools may qualify if accredited by NEASC or approved by the Department of Education; since 1981 Maine has required participating private schools to be “nonsectarian.”
Bangor Christian Schools (BCS) and Temple Academy are NEASC‑accredited, church‑affiliated schools that Maine’s Department treats as sectarian and therefore ineligible for tuition payments.
Petitioners sued the Maine Commissioner alleging the nonsectarian requirement violates the Free Exercise Clause (and other clauses); district court and First Circuit upheld the requirement, with the First Circuit emphasizing a "use‑based" restriction and that the benefit was the "rough equivalent" of a secular public education.
The Supreme Court reversed: it held the nonsectarian exclusion violates the Free Exercise Clause, applying and extending the principles from Trinity Lutheran and Espinoza and rejecting Maine’s status/use and "public‑education equivalent" characterizations.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Does Maine’s nonsectarian requirement violate the Free Exercise Clause?	Carson: Excluding religious schools from an otherwise generally available benefit discriminates on the basis of religion.	Makin: The State may withhold funds to ensure the public benefit remains secular.	Yes. Excluding otherwise eligible religious schools from tuition assistance because of their religious character triggers strict scrutiny and fails.
2. Can Maine’s anti‑establishment interest justify the exclusion?	Carson: Zelman/Espinoza—once a State subsidizes private education it cannot disqualify religious schools solely for being religious.	Makin: State may choose not to finance religious instruction to avoid Establishment Clause problems.	No. Maine’s preference for greater separation than the Constitution requires does not justify excluding religious schools from an otherwise available benefit.
3. Does a status/use distinction (disqualifying schools based on religious uses rather than status) permit the nonsectarian rule?	Carson: Use‑based restrictions that bar religious instruction equally burden free exercise; status/use distinction is insubstantial.	Makin: The law targets religious uses of funds (religious instruction), not mere religious status.	Rejected. The Court held status/use distinctions do not avoid Free Exercise scrutiny; use‑based exclusions that single out religious exercise are also forbidden.
4. Is Locke v. Davey controlling and does it allow excluding religious uses here?	Carson: Locke was narrow (ministerial training) and does not authorize broad exclusions of religious schools from general benefits.	Makin: Locke recognizes a historic state interest against funding certain religious uses.	Locke is inapplicable beyond its narrow context; it does not permit the broad exclusion at issue.

Key Cases Cited

Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. _ (Free Exercise forbids disqualifying otherwise eligible recipients solely for their religious character)
Espinoza v. Montana Department of Revenue, 591 U.S. _ (A State that subsidizes private education may not disqualify religious schools solely because they are religious)
Zelman v. Simmons‑Harris, 536 U.S. 639 (A neutral program that allows independent parental choice to direct funds to religious schools does not violate the Establishment Clause)
Locke v. Davey, 540 U.S. 712 (Upheld narrow exclusion of funds for training for the ministry; limited to historic concerns about funding clergy)
Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (Laws targeting religious conduct are subject to strict scrutiny)
Sherbert v. Verner, 374 U.S. 398 (Denying public benefits can burden free exercise)
Everson v. Board of Education, 330 U.S. 1 (Government may not exclude individuals from public benefits because of their religion)