{"id":2507,"date":"2022-07-29T09:00:32","date_gmt":"2022-07-29T13:00:32","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2507"},"modified":"2025-12-22T19:45:57","modified_gmt":"2025-12-22T23:45:57","slug":"religious-autonomy-in-carson-v-makin-nick-reaves","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/religious-autonomy-in-carson-v-makin-nick-reaves\/","title":{"rendered":"Religious Autonomy in Carson v. Makin \u2013 Nick Reaves"},"content":{"rendered":"\n
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Download a PDF<\/a><\/div>\n<\/div>\n\n\n\n

Religious Autonomy in Carson v. Makin<\/em><\/strong><\/h2>\n\n\n\n

By Nick Reaves[1]<\/a><\/strong><\/h2>\n\n\n\n

In Carson v. Makin<\/em>, the Supreme Court confirmed that excluding only \u201csectarian\u201d religious schools from its tuition aid program violated the \u201cunremarkable\u201d constitutional principle of religious neutrality\u2014that one religion cannot be preferred to another.[2]<\/a> But court watchers who view this case as the simple application of prior precedent may have missed one of its most important points: its embrace of church autonomy principles in the government funding context.<\/p>\n\n\n\n

To help explain why Maine could not constitutionally pick and choose which<\/em> religious schools to fund, the Supreme Court\u2014for the first time\u2014called on its line of religious autonomy precedent. The Court, citing Our Lady of Guadalupe<\/em>,[3]<\/a> explained that the line Maine sought to draw (excluding religious schools that \u201cpromote\u201d faith and \u201cinculcate\u201d religious beliefs into the curriculum)[4]<\/a> misunderstood the very purpose of religious schools. The Court then explained that even the process of \u201cscrutinizing whether and how a religious school pursues its educational mission\u201d unconstitutionally entangled the government in religious questions and could result in \u201cdenominational favoritism.\u201d[5]<\/a><\/p>\n\n\n\n

Carson<\/em> is therefore far more than \u201cTrinity Lutheran<\/em> 3.0.\u201d[6]<\/a> First, it confirms that the status\/use distinction discussed in prior government funding cases did not bear the weight that some had hoped. Second, it cabins Locke v. Davey<\/em>\u2019s[7]<\/a> anti-establishment interests to the funding of \u201cvocational religious degrees.\u201d[8]<\/a> And finally, it anchors the Court\u2019s government funding cases in core Free Exercise doctrine, framing Maine\u2019s actions as \u201cexclud[ing] otherwise eligible schools on the basis of their religious exercise<\/em>.\u201d[9]<\/a> Together, these doctrinal developments make clear that governments cannot use access to generally available funding as a wedge to interfere with the internal operations of religious organizations.<\/p>\n\n\n\n

I.               Maine\u2019s Tuition Aid Program<\/strong><\/p>\n\n\n\n

Maine, the most rural state in the Union,[10]<\/a> provides families living in school districts without a public secondary school with funding to \u201cpay the tuition . . . at the public school or the approved private school of the parent\u2019s choice at which the student is accepted.\u201d[11]<\/a> The program imposes no geographic limits on schools the state will fund and, until 1981, parents could choose to send their children to any accredited religious or secular private school, with very few restrictions.[12]<\/a> However, in 1981, Maine\u2019s legislature limited the program to \u201cnonsectarian\u201d schools. While not defined by statute, the Maine Department of Education considers a religious school \u201csectarian\u201d if it is \u201cassociated with a particular faith or belief system\u201d and, in addition to teaching academic subjects, it \u201cpromotes the faith or belief system with which it is associated and\/or presents the material taught through the lens of this faith.\u201d[13]<\/a> In 2018, two Maine families challenged this exclusion of \u201csectarian\u201d schools, but both the district court and the First Circuit upheld the program under prior precedent. Then the Supreme Court granted certiorari.<\/p>\n\n\n\n

At the Supreme Court, a win for the families seemed likely after just a few minutes of Maine\u2019s oral argument. In what appeared to be a pre-planned hypothetical, Chief Justice Roberts asked Maine\u2019s attorney how the state would treat two different religious schools under its tuition funding program. The first school, run by \u201cReligion A,\u201d \u201chas a doctrine that they should provide service to their . . . neighbors . . . but there\u2019s nothing in their . . . doctrine about propagating the faith,\u201d so the school \u201clook[s] just like a public school, but it\u2019s owned by\u201d a religious community.[14]<\/a> The second school is run by \u201cReligion B\u201d and \u201cits doctrine requires adherents to educate children in the faith.\u201d[15]<\/a> Religion B\u2019s school, therefore, \u201cis infused in every subject with their view of the faith.\u201d[16]<\/a> Responding to this hypothetical, Maine\u2019s attorney confirmed what the Chief Justice surely already knew: that parents sending their children to the first school would receive tuition funding but parents at the second school would not, based on the religious differences between the two schools.[17]<\/a><\/p>\n\n\n\n

Similarly problematic, in response to a question from Justice Barrett, Maine\u2019s attorney acknowledged that when parents request funding to send their children to a school not already in the program, Maine\u2019s Department of Education \u201cdoes a little homework\u201d to figure out whether it considers the school sectarian or non-sectarian.[18]<\/a> In briefing, Maine explained that the \u201cfocus\u201d of this inquiry \u201cis on what the school teaches through its curriculum and related activities, and how the material is presented.\u201d[19]<\/a> And that \u201caffiliation or association with a church or religious institution\u201d was relevant, but not \u201cdispositive.\u201d[20]<\/a> And at oral argument, Maine\u2019s attorney added that sometimes these decisions can be made by a cursory review of \u201cthe school\u2019s website . . . [o]r maybe . . . the student handbook.\u201d[21]<\/a><\/p>\n\n\n\n

Oral argument thus confirmed a fundamental flaw in Maine\u2019s tuition assistance program. By excluding only \u201csectarian\u201d schools, the program attempted to distinguish between<\/em> religious schools based on Maine\u2019s own assessment of whether<\/em> and how <\/em>a religious school \u201cpromotes a particular faith and presents academic material through the lens of that faith.\u201d[22]<\/a> And Maine had no objective criteria or measure for determining which religious schools crossed the line. Instead, the assessment was left to the discretion of Maine\u2019s Department of Education\u2014apparently sometimes based only on a quick skim of the school\u2019s public facing materials.[23]<\/a><\/p>\n\n\n\n

II.             Status vs. Use<\/strong><\/p>\n\n\n\n

Maine\u2019s attempt to distinguish between permissible and impermissible types of religious education also revealed the impossibility of distinguishing between religious status <\/em>and the religious use <\/em>in generally available government aid programs.<\/p>\n\n\n\n

Defending its program, Maine argued that it had an overriding anti-establishment interest in denying funding to schools that would put government money to a religious \u201cuse.\u201d[24]<\/a> According to the state, its exclusion of \u201csectarian\u201d schools mapped directly onto the status\/use distinction suggested by the Supreme Court\u2019s holdings in Trinity Lutheran<\/em> and Espinoza<\/em>.[25]<\/a> The First Circuit and Justice Breyer agreed. As the First Circuit saw it, Maine \u201cdoes not bar schools from receiving funding simply based on their religious identity,\u201d it instead excludes schools \u201cbased on the religious use<\/em> that they would make of it in instructing chil\u00addren.\u201d[26]<\/a><\/p>\n\n\n\n

In both Espinoza <\/em>and Trinity Lutheran<\/em>, Chief Justice Roberts, writing for the majority, characterized the government aid program as one that discriminated first and foremost on religious status: religious schools need not apply.[27]<\/a> But the Court, especially in Espinoza<\/em>, was also careful to note that this did not implicitly sanction discrimination based on religious use.[28]<\/a> The Court simply had no need to address the question.<\/p>\n\n\n\n

Ignoring the Court\u2019s warning in Espinoza<\/em>, Maine nevertheless sought to test the constitutionality of religious use discrimination. When squarely presented, the Court had little trouble showing why Maine\u2019s focus on religious use \u201cmisreads our precedents.\u201d[29]<\/a> The Court explained that neither Trinity Lutheran <\/em>nor Espinoza <\/em>\u201csuggested that use-based discrimination is any less offensive to the Free Exercise Clause,\u201d and relied on Maine\u2019s own administration of its tuition aid program to \u201cillustrate[ ] why.\u201d[30]<\/a> As the Court explained, Maine\u2019s attempt to distinguish between religious schools based on \u201cwhether and how\u201d they \u201cpursue[ ] [their] educational mission\u201d raised serious religious autonomy concerns.[31]<\/a><\/p>\n\n\n\n

III.           Religious Autonomy<\/strong><\/p>\n\n\n\n

The principles of religious autonomy discussed in Carson<\/em> are rooted in both Religion Clauses. As early as 1871, in Watson v. Jones<\/em>, the Supreme Court held that civil courts must defer to religious bodies on \u201cquestions of discipline, or of faith, or ecclesiastical rule, custom, or law.\u201d[32]<\/a> Later, in Larson v. Valente<\/em>, the Court held that \u201c[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.\u201d[33]<\/a> The principles of religious autonomy therefore generally prevent the government from interfering in disputes over religious doctrine and in internal governance decisions \u201cthat affect[ ] the faith and mission\u201d of religious institutions, including religious schools.[34]<\/a> Keeping the government out of religious disputes therefore prevents both government entanglement in religious questions and religious favoritism.<\/p>\n\n\n\n

One form of unconstitutional entanglement that impinges on religious autonomy is the attempt by governments to distinguish between \u201csectarian\u201d and \u201cnon-sectarian\u201d religious beliefs or organizations. In Town of Greece<\/em>, the Supreme Court explained not only that such a distinction is inconsistent with our nation\u2019s history and traditions, but also that drawing this distinction would force courts \u201cto act as supervisors and censors of religious speech.\u201d[35]<\/a> And as Justice Thomas explained in his American Legion<\/em> concurrence, such a distinction would result in \u201ccourts \u2018trolling through religious beliefs\u2019\u201d and making \u201cinevitably arbitrary decisions\u201d regarding what is and is not \u201csectarian.\u201d[36]<\/a> This would obviously create serious religious autonomy concerns.<\/p>\n\n\n\n

Protecting this religious autonomy is particularly important when it comes to religious education. In Hosanna-Tabor <\/em>and Our Lady<\/em>, the Supreme Court confirmed that religious schools must have exclusive control over who<\/em> teaches the faith to protect their \u201cindependence in matters of faith and doctrine.\u201d[37]<\/a> As the Court reasoned, \u201ca wayward\u201d teacher could \u201ccontradict\u201d the tenets of the faith and lead students \u201caway from the faith.\u201d[38]<\/a> This would undermine a crucial component of religious education: transmitting the faith \u201cto the next generation.\u201d[39]<\/a><\/p>\n\n\n\n

Against this constitutional backdrop, Maine\u2019s tuition aid program raised significant religious autonomy concerns. By determining which schools were eligible for tuition funding based on what<\/em>, how<\/em>, and how much<\/em> religion was infused into a school\u2019s curriculum, Maine was conditioning benefits on a religious school\u2019s conformity to the government\u2019s preferred approach to religious education. Parents who needed the state\u2019s tuition assistance were forced to choose schools with a certain religious perspective, and some religious schools may have even felt financial pressure to conform to Maine\u2019s requirements to obtain (or maintain) eligibility. Perhaps even worse, Maine\u2019s evaluation process was both essentially standardless and discretionary, further entangling the government in religious questions.<\/p>\n\n\n\n

IV.           The Fiction of Value-Neutral Religious Education<\/strong><\/p>\n\n\n\n

To defend its program, Maine argued that it was not expressing hostility or opposition to the schools\u2019 beliefs<\/em>; it just wanted to prevent the \u201cinculcation\u201d or infusion of those beliefs into the curriculum and the school environment.[40]<\/a> In other words, if religious schools could be religious without encouraging<\/em> religion, they would be eligible for funding. But this argument fundamentally misunderstands religious education (and education more generally).<\/p>\n\n\n\n

Maine\u2019s argument assumes that non-sectarian schools (religious, private, or public) do not inculcate any<\/em> values. But no type of education can be completely value neutral. As Justice Barrett explained at oral argument, \u201call schools, in making choices about curriculum and the formation of children, have to come from some belief system.\u201d[41]<\/a> \u201c[I]n public schools, . . . the districts are\u201d choosing \u201cthe kind of values that they want to inculcate in the students.\u201d[42]<\/a> Even Justice Breyer recognized as much. As he explained in his dissent, Maine\u2019s public schools \u201cseek first and foremost to provide a primarily civic education\u201d and serve as \u201cthe primary vehicle for transmitting the values<\/em> on which our society rests,\u201d which he viewed as including \u201cthe preservation of a democratic system of government.\u201d[43]<\/a><\/p>\n\n\n\n

Education certainly includes the passing on of objective facts, but it also imparts ways of thinking and perspectives on history and current events. It inculcates civil (and sometimes religious) values, and even good (or bad) habits. So understood, Maine\u2019s argument breaks down: because all schools impart values in one way or another, Maine is simply picking and choosing which values it deems appropriate and beneficial and which it deems, as explained further below, \u201cfundamentally at odds with [the] values<\/em> we [the State of Maine] hold dear.\u201d[44]<\/a><\/p>\n\n\n\n

Thus, while Maine may have sidestepped religious status discrimination, it walked right into the Court\u2019s religious autonomy precedent by privileging some religious beliefs over others based on a discretionary evaluation of how religious schools pass on the faith.<\/p>\n\n\n\n

V.             Carson<\/em>\u2019s Impact<\/strong><\/p>\n\n\n\n

Doctrinally, this decision confirms that state Blaine Amendments\u2014laws often rooted in religious animus that exclude \u201csectarian\u201d schools from public benefits\u2014are well and truly dead. While Espinoza <\/em>did much of the heavy lifting,[45]<\/a> Carson<\/em>\u2019s unequivocal rejection of the status\/use distinction ensures that states and lower courts can no longer rely on arguments about religious \u201cuse\u201d to deny religious organizations equal access to generally available government funding programs.<\/p>\n\n\n\n

In a similar vein, Carson <\/em>confirmed that Locke v. Davey<\/em>,[46]<\/a> a 2004 case in which the Supreme Court upheld the State of Washington\u2019s college scholarship program against a free exercise challenge,[47]<\/a> \u201ccannot be read beyond its narrow focus on vocational religious degrees\u201d and cannot justify exclusion of \u201creligious persons\u201d based on \u201ctheir anticipated religious use\u201d of the government benefit.[48]<\/a> Instead, the Court confirmed that Locke <\/em>is justified only by the unique \u201chistoric and substantial state interest\u201d against taxpayer funding for \u201cchurch leaders.\u201d[49]<\/a> Outside of a theological seminary, it is hard to see how Locke<\/em> has any life left.<\/p>\n\n\n\n

Practically, while Carson<\/em> may signal the end of the status\/use distinction, it may also pave the way for the Supreme Court to wade into even deeper waters. On the same day the Court ruled against Maine, the state\u2019s attorney general issued a press release calling the ruling \u201cdisturbing,\u201d and associating the beliefs of the prevailing religious families and schools with \u201cdiscrimination, intolerance, and bigotry.\u201d[50]<\/a> Tellingly, the attorney general revealed the value-laden motivations behind the state\u2019s defense of its tuition aid program: he described the school\u2019s religious beliefs as \u201cinimical to a public education\u201d and \u201cfundamentally at odds with the values we hold dear.\u201d[51]<\/a> He then speculated that Maine may still be able to bar disfavored religious schools from its program because, he argued, they engage in \u201cdiscriminatory practices\u201d in violation of the Maine Human Rights Act\u2019s \u201canti-discrimination provisions.\u201d[52]<\/a><\/p>\n\n\n\n

Unwilling to cede defeat, Maine appears poised to continue to exclude religious schools on a new theory: that conduct motivated by a school\u2019s sincere religious beliefs (like a school\u2019s decision to only hire coreligionists or only admit students who share the school\u2019s religious beliefs) violates state antidiscrimination laws. This argument is not new. Variations on this theme are already working their way through the courts. In the religious student group context, for example, courts are confronting cases in which student clubs have been denied generally available benefits not because of their beliefs, but because their beliefs impose certain requirements on club leaders (like requiring leaders to conduct themselves in accordance with the club\u2019s statement of faith).[53]<\/a> Similar dynamics are at play in fights over the application of public accommodation laws and non-discrimination requirements for federal funding.[54]<\/a><\/p>\n\n\n\n

But\u2014much like the status\/use distinction Carson<\/em> rejected\u2014this artificial attempt to distinguish between what religious communities believe and how those beliefs are concretely manifest cannot hold up in practice, for at least four reasons. First, Carson<\/em> itself, by incorporating the principles of religious autonomy, confirmed that religious organizations must have the freedom to operate in accordance with their beliefs. Second, Fulton <\/em>implicitly rejected the argument that religious beliefs could be separated from how a religious ministry puts those beliefs into practice\u2014even in the context of government-contracted services.[55]<\/a> Third, AOSI<\/em> and Masterpiece<\/em> forbade the targeted use of antidiscrimination provisions and gerrymandered programs to exclude religious applicants.[56]<\/a> Finally, because Maine has exempted single-sex<\/em> private schools (but not religious schools) from its nondiscrimination requirements, Tandon<\/em> would require the state to justify this disparate treatment under strict scrutiny, which Maine would surely struggle to do.[57]<\/a><\/p>\n\n\n\n

Maine may think it has \u201coutmaneuver[ed]\u201d the Supreme Court.[58]<\/a> But Carson <\/em>is further confirmation that the Court has already thought long and hard about these issues and is prepared to continue to protect religious autonomy and, with it, a healthy separation between church and state.[59]<\/a><\/p>\n\n\n\n

[1]<\/a> Nick Reaves is counsel at the Becket Fund for Religious Liberty. Becket filed an amicus brief in the case discussed in this article. But the views expressed here do not necessarily reflect the views of Becket or its clients. The author thanks his colleagues Mark Rienzi, Eric Rassbach, and Diana Verm. Any errors remain his own.<\/p>\n\n\n\n

[2]<\/a> Carson v. Makin, 142 S. Ct. 1987, 1997\u20132002 (2022).<\/p>\n\n\n\n

[3]<\/a> Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020).<\/p>\n\n\n\n

[4]<\/a> Carson<\/em>, 142 S. Ct. at 2002.<\/p>\n\n\n\n

[5]<\/a> Id. <\/em>at 2001.<\/p>\n\n\n\n

[6]<\/a> Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).<\/p>\n\n\n\n

[7]<\/a> Locke v. Davey, 540 U.S. 712 (2004).<\/p>\n\n\n\n

[8]<\/a> Carson<\/em>, 142 S. Ct. at 2002.<\/p>\n\n\n\n

[9]<\/a> Id<\/em>. (alteration in original) (emphasis added).<\/p>\n\n\n\n

[10]<\/a> Id<\/em>. at 1993.<\/p>\n\n\n\n

[11]<\/a> Me. Revised Statute Annotated, Title 20-A, \u00a75204(4) (Cum. Supp. 2021).<\/p>\n\n\n\n

[12]<\/a> Carson<\/em>, 142 S. Ct. at 1994. Putting aside Maine\u2019s requirement that schools be \u201cnon-sectarian,\u201d the state\u2019s only other requirement was that schools either be regionally accredited or satisfy \u201cspecified curricular requirements\u201d such as using English as the language of instruction and offering a course in \u201cMaine history.\u201d Id. <\/em>at 1993. For schools that are accredited, they need not also meet Maine\u2019s curricular requirements. Id.<\/em><\/p>\n\n\n\n

[13]<\/a> Carson<\/em>, 142 S. Ct. at 2007\u201308 (Breyer, J., dissenting) (alteration in original).<\/p>\n\n\n\n

[14]<\/a> Transcript of Oral Argument at 56, Carson v. Makin, 142 S. Ct. 1987 (2022) (No. 20-1088).<\/p>\n\n\n\n

[15]<\/a> Id.<\/em> at 56\u201357.<\/p>\n\n\n\n

[16]<\/a> Id<\/em>.<\/p>\n\n\n\n

[17]<\/a> Id. <\/em>at 57.<\/p>\n\n\n\n

[18]<\/a> Id.<\/em> at 90.<\/p>\n\n\n\n

[19]<\/a> Brief of Respondent at 6, Carson v. Makin, 142 S. Ct. 1987 (2022) (No. 20-1088).<\/p>\n\n\n\n

[20]<\/a> Id<\/em>. at 5\u20136.<\/p>\n\n\n\n

[21]<\/a> Transcript of Oral Argument at 90, Carson v. Makin, 142 S. Ct. 1987 (2022) (No. 20-1088) (alteration in original).<\/p>\n\n\n\n

[22]<\/a> Carson v. Makin, 142 S. Ct. 1987, 2001 (2022).<\/p>\n\n\n\n

[23]<\/a> Maine argued both at oral argument and in its brief that many schools \u201cself-identify as nonsectarian\u201d and that it is \u201cextremely rare\u201d for Maine to be \u201cforced to make a determination.\u201d Brief of Respondent at 5, Carson v. Makin, 142 S. Ct. 1987 (2022) (No. 20-1088). Putting aside the selective (and potentially complaint-driven) enforcement problems with this system, there is also obviously no exemption in the Constitution for \u201cjust a little bit\u201d of religious discrimination.<\/p>\n\n\n\n

[24]<\/a> Carson<\/em>, 142 S. Ct. at 2006\u201307 (Breyer, J., dissenting); Brief of Respondent at 35\u201340, Carson v. Makin, 142 S. Ct. 1987 (2022) (No. 20-1088).<\/p>\n\n\n\n

[25]<\/a> Espinoza v. Mont. Dep\u2019t of Revenue,<\/em> 140 S. Ct. 2246 (2020).<\/p>\n\n\n\n

[26]<\/a> Carson v. Makin, 979 F.3d 21, 40 (1st Cir. 2020) (emphasis added); 142 S. Ct. at 2007 (Breyer, J., dissenting) (similar).<\/p>\n\n\n\n

[27]<\/a> Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017) (\u201cThe rule is simple: No churches need apply.\u201d); Espinoza<\/em>, 140 S. Ct. at 2256 (\u201cSo applied, the provision \u2018impose[s] special disabilities on the basis of religious status.\u2019\u201d) (internal citation omitted).<\/p>\n\n\n\n

[28]<\/a> Espinoza<\/em>, 140 S. Ct. at 2257 (\u201cNone of this is meant to suggest that we agree with the Department . . . that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.\u201d).<\/p>\n\n\n\n

[29]<\/a> Carson<\/em>, 142 S. Ct. at 2001.<\/p>\n\n\n\n

[30]<\/a> Id.<\/em> (alteration in original).<\/p>\n\n\n\n

[31]<\/a> Id. <\/em>(alteration in original).<\/p>\n\n\n\n

[32]<\/a> Watson v. Jones, 80 U.S. 679, 727 (1871). See also <\/em>Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 115 (1952); Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 191 (1960).<\/p>\n\n\n\n

[33]<\/a> Larson v. Valente, 456 U.S. 228, 244 (1982) (alteration in original).<\/p>\n\n\n\n

[34]<\/a> Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 190 (2012) (alteration in original). See also <\/em>Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2062 (2020).<\/p>\n\n\n\n

[35]<\/a> Town of Greece v. Galloway, 572 U.S. 565, 566 (2014).<\/p>\n\n\n\n

[36]<\/a> Am. Legion v. Am. Humanist Ass\u2019n, 139 S. Ct. 2067, 2096\u201397 (2019) (Thomas, J., concurring) (cleaned up). See also <\/em>Walz v. Tax Comm\u2019n of City of N.Y., 397 U.S. 664, 675 (1970) (explaining that government programs requiring \u201cofficial and continuing surveillance\u201d to administer can lead \u201cto an impermissible degree of entanglement\u201d).<\/p>\n\n\n\n

[37]<\/a> Our Lady<\/em>, 140 S. Ct. at 2061.<\/p>\n\n\n\n

[38]<\/a> Id.<\/em> at 2060. See also <\/em>Christian Legal Soc\u2019y Chapter of the Univ. of Cal., Hastings Coll. of L. v. Martinez, 561 U.S. 661, 680 (\u201c[W<\/em>]ho<\/em> speaks . . . colors what<\/em> concept is conveyed.\u201d).<\/p>\n\n\n\n

[39]<\/a> Our Lady<\/em>, 140 S. Ct. at 2063.<\/p>\n\n\n\n

[40]<\/a> Brief of Respondent at 19, Carson v. Makin, 142 S. Ct. 1987 (2022) (No. 20-1088).<\/p>\n\n\n\n

[41]<\/a> Transcript of Oral Argument at 87, Carson v. Makin, 142 S. Ct. 1987 (2022) (No. 20-1088).<\/p>\n\n\n\n

[42]<\/a> Id <\/em>at 87\u201388 (alteration in original).<\/p>\n\n\n\n

[43]<\/a> Carson v. Makin, 142 S. Ct. 1987, 2008\u201309 (2022) (Breyer, J., dissenting) (emphasis added) (citing Plyler v. Doe, 457 U.S. 202, 221 (1982)).<\/p>\n\n\n\n

[44]<\/a> Statement of Maine Attorney General Aaron Frey on Supreme Court Decision in Carson v. Makin, <\/em>Office of the Maine Attorney General (June 21, 2022) (alteration in original) (emphasis added), https:\/\/perma.cc\/8UAT-2RA5.<\/p>\n\n\n\n

[45]<\/a> Eric Rassbach, The End of the Anti-Religion Blaine Amendments is a Victory for Religious Freedom<\/em>, Real Clear Religion (July 9, 2020), https:\/\/perma.cc\/5QUE-Q7J9.<\/p>\n\n\n\n

[46]<\/a> 540 U.S. 712 (2004).<\/p>\n\n\n\n

[47]<\/a> Id.<\/em> at 725.<\/p>\n\n\n\n

[48]<\/a> Carson<\/em>, 142 S. Ct. at 2002.<\/p>\n\n\n\n

[49]<\/a> Id<\/em>.<\/p>\n\n\n\n

[50]<\/a> Statement of Maine Attorney General Aaron Frey on Supreme Court Decision in Carson v. Makin, <\/em>Office of the Maine Attorney General (June 21, 2022), https:\/\/perma.cc\/8UAT-2RA5.<\/p>\n\n\n\n

[51]<\/a> Id.<\/em><\/p>\n\n\n\n

[52]<\/a> Id.<\/em><\/p>\n\n\n\n

[53]<\/a> See, e.g., <\/em>Bus. Leaders in Christ v. Univ. of Iowa, 991 F.3d 969 (8th Cir. 2021); Intervarsity Christian Fellowship\/USA v. Univ. of Iowa, 5 F.4th 855 (8th Cir. 2021); InterVarsity Christian Fellowship\/USA v. Bd. of Governors of Wayne State Univ., 534 F. Supp. 3d 785 (E.D. Mich. 2021).<\/p>\n\n\n\n

[54]<\/a> See, e.g.<\/em>, Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1878 (rejecting argument that government contracting programs are subject to lesser scrutiny under the Free Exercise Clause).<\/p>\n\n\n\n

[55]<\/a> Id.<\/em><\/p>\n\n\n\n

[56]<\/a> See <\/em>Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm\u2019n, 138 S. Ct. 1719, 1739 (2018). See also <\/em>Agency for Int\u2019l Dev. v. All. for Open Soc\u2019y Int\u2019l, Inc., 570 U.S. 205, 215 (2013); Walz v. Tax Comm\u2019n of City of N.Y., 397 U.S. 664, 696 (1970) (Harlan, J., concurring) (\u201cThe Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.\u201d). Maine even conceded in its briefing that it defined its funding program specifically to exclude \u201csectarian\u201d schools. Brief of Respondent at 2, Carson v. Makin, 142 S. Ct. 1987 (2022) (No. 20-1088) (\u201cAs long as the school provides a nonsectarian (i.e., <\/em>public) education, it may receive public funds.\u201d).<\/p>\n\n\n\n

[57]<\/a> Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021); Me. Revised Statute Annotated, Title 5, \u00a74553(2-A) (exempting single-sex pri\u00advate schools).<\/p>\n\n\n\n

[58]<\/a> Aaron Tang, There\u2019s a Way to Outmaneuver the Supreme Court, and Maine Has Found It<\/em>, NY Times (June 23, 2022) (alteration in original), https:\/\/perma.cc\/EC6K-8B2Y.<\/p>\n\n\n\n

[59]<\/a> New survey finds widespread support for letting Church, not State, control internal religious direction<\/em>, Becket (June 17, 2020), https:\/\/perma.cc\/FD3C-NBVC.<\/p>\n","protected":false},"excerpt":{"rendered":"

Religious Autonomy in Carson v. Makin By Nick Reaves[1] In Carson v. Makin, the Supreme Court confirmed that excluding only \u201csectarian\u201d religious schools from its tuition aid program violated the \u201cunremarkable\u201d constitutional principle of religious neutrality\u2014that one religion cannot be preferred to another.[2] But court watchers who view this case as the simple application of prior precedent may have missed one of its most important points: its embrace of church autonomy principles in the government […]<\/p>\n","protected":false},"author":135,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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