The U.S. Supreme Court delivered a victory this week for religious liberty. In a 6-3 ruling deciding Carson v. Makin the justices made clear that a state — in this case, Maine — cannot constitutionally prohibit otherwise generally available tuition assistance from helping parents simply because they choose religious education for their children. As ECFA argued in a brief before the court, a construct allowing discrimination based on religious “use” versus “status” could not hold up under First Amendment scrutiny.

This case arose when the parents of two Christian families challenged their home state of Maine for excluding them from a broadly available education program simply because of their religious choice. Maine requires all its school-age children to have access to public education, but because its population is stretched out remotely in many areas of the state it has set up a tuition assistance program to help meet that goal. Parents receiving the state benefit may choose any generally approved school. Any school — provided it is “nonsectarian.”

Lower courts had supported Maine’s discrimination based on religion, but Supreme Court Chief Justice John Roberts wrote a majority opinion soundly rejecting this practice as a violation of the U.S. Constitution’s protection of religious free exercise.

Meanwhile, Justice Stephen Breyer and his fellow dissenters believed their colleagues were going too far in forgetting the constitutional prohibition on establishing religion. Indeed, Justice Sonia Sotomayor wrote, “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”

However, Roberts noted that states need not fund private programs. But if they choose to do so, faith alone cannot be a disqualifier. He drew on the logic of the landmark Trinity Lutheran ruling (2017) that found it “odious to our Constitution” for a church preschool to be denied access to a state playground resurfacing program. He also highlighted the more recent Espinoza ruling (2020) against Montana’s refusal to aid parents in a general program based on the religious character of their schools.

While one might think Espinoza could have settled this case in advance, authorities had attempted to distinguish between the religious status of a school versus the religious use state dollars might support. ECFA and others had argued to the court that such a distinction made little sense and flew in the face of free exercise of religion.

“To teach religion is what it means to be a religious school; church-affiliated schools that teach no religion essentially do not exist,” ECFA and its amicus partners said.

Similarly, eleven Republican senators, including Senate GOP Leader Mitch McConnell (R-Ky.) said the lower court reasoning “injects a ‘status v. use’ distinction that Congress has never recognized in practice.”

The dissent found merit in the reasoning of the lower courts, but the majority of justices were not swayed. Roberts suggested “any status-use distinction lacks a meaningful application not only in theory, but in practice as well.”

The parents in this case were supported by First Liberty Institute and Institute for Justice. Kelly Shackelford, president of First Liberty, welcomed this ruling and said, “Parents in Maine, and all over the country, can now choose the best education for their kids without fearing retribution from the government.”