Carson v. Makin: Using Government Funds for Religious Activity

Legal Sidebari

Carson v. Makin: Using Government Funds
for Religious Activity
July 6, 2022
When the government decides whether to give public funds to religious entities, that decision can raise
constitutional questions under both of the First Amendment’s Religion Clauses. For many years, Supreme
Court precedent focused primarily on whether federal, state, or local governments violated the
Establishment Clause by funding religious activity. Accordingly, governments sometimes barred public
funds from being given to religious activities or religious groups. In recent years, however, the Supreme
Court has made clear that governments may violate the Free Exercise Clause by barring religious entities
from receiving public benefits because of their faith. Under prevailing precedent, then, governments
might sometimes be constitutionally or statutorily barred from giving public funds to religious activities
but also cannot exclude religious entities from eligibility solely because of their religious character.
In Carson v. Makin, issued on June 21, 2022, the Supreme Court held that states could not exclude
religious schools from an indirect aid program based on the schools’ religious use of the funds. This Legal
Sidebar explains that decision and discusses possible implications for federal funding, as well as further
implications stemming from the Supreme Court’s subsequent Establishment Clause ruling in Kennedy v.
Bremerton School District.
Legal Background
The First Amendment provides that the government “shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.” The intersection of these two clauses—the
Establishment Clause and the Free Exercise Clause, collectively described as the Religion Clauses—is a
perennial issue in constitutional law.
The Supreme Court has said the Establishment Clause forbids, among other things, “financial support” of
“religious activity.” For example, the Court in 1973 invalidated a government tuition-reimbursement
program that directly provided money to religious institutions but lacked safeguards to ensure that the
money was used only “for secular, neutral, and nonideological purposes.” Subsequent cases, however,
seemed to walk back such Establishment Clause restrictions, and in 1988, the Supreme Court upheld a
federal grant program that did not expressly restrict the religious use of funds. That case said absent
evidence to the contrary, and particularly when the funds were granted to institutions “that were not
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pervasively sectarian,” the Court would assume that religious grantees could carry out the funded
programs “in a lawful, secular manner.”
At least some opinions since then have suggested that direct government aid still may not actually be used
for religious purposes. Despite such decisions, the Court has held that the Establishment Clause does not
forbid all government support for religious entities so long as the government is “extending its general
state law benefits to all its citizens without regard to their religious belief.” Among other programs, the
Supreme Court has approved of funds that cover only specific secular services and has approved of
indirect aid programs such as school voucher programs, in which citizens can independently choose to use
neutral government aid at religious organizations. To highlight this second point: The Supreme Court has
distinguished direct aid programs, in which the government gives funds directly to religious entities, from
indirect aid programs, in which the government gives aid to third parties who can choose where to spend
those funds.
Further, the Supreme Court’s more recent cases have suggested that where a government offers benefits
that are not prohibited by the Establishment Clause, the Free Exercise Clause may sometimes require the
government to offer those benefits to religious as well as secular recipients. In 2017, the Court held in
Trinity Lutheran Church of Columbia v. Comer that a state grant program violated the Free Exercise
Clause by excluding religious organizations from receiving funds to purchase rubber playground surfaces.
The Court said that because the program barred religious organizations from the program based solely on
their religious character, this religious penalty was subject “to the ‘most rigorous’ scrutiny” and could be
justified only by “a state interest ‘of the highest order.’” In the Court’s view, the state’s interest in
“skating as far as possible from religious establishment concerns” was insufficiently “compelling” in light
of the policy’s “clear infringement on free exercise.”
The Trinity Lutheran opinion acknowledged that in a prior case, Locke v. Davey, the Court had ruled a
state did not violate the Free Exercise Clause by prohibiting students from using publicly funded
scholarships to pursue degrees in devotional theology. In Locke, the Court recognized the state’s “historic
and substantial state interest” in not using government funds to support clergy, even though that support
was through an indirect aid program that would not violate the Establishment Clause. Trinity Lutheran
distinguished Locke, saying the state in Locke had permissibly chosen to deny a scholarship because of
what the recipient “proposed to do—use the funds to prepare for the ministry.” By contrast, in Trinity
Lutheran, the Court held that the state was impermissibly denying funds because of what the recipient
“was”—a church. In a concurrence, Justice Gorsuch questioned the “stability” of a line that attempted to
distinguish “laws that discriminate on the basis of religious status and religious use,” arguing that in many
cases, “the same facts can be described both ways.”
Last year, in Espinoza v. Montana Department of Revenue, the Supreme Court extended Trinity Lutheran
to hold that a state violated the Free Exercise Clause when it barred religious schools from a tax credit
program benefiting parents of private school students. The Court concluded that the state program
excluded religious schools “solely by reference to religious status” by barring schools based on their
religious affiliation. Accordingly, the Court ruled that the religious disqualification failed strict scrutiny.
While Espinoza reaffirmed that governments may not discriminate against beneficiaries solely on the
basis of their religious character, it left open the possibility that governments might still be able to bar
beneficiaries that would put public funds to religious uses.
Facts and Procedural History of Carson v. Makin
Maine’s constitution requires towns to provide a free public education, but not all of its districts operate
public secondary schools. Instead, to provide a secondary education, state statutes allow districts to either
(1) contract with public schools in other districts or approved private schools, or (2) pay tuition “at the

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public school or the approved private school of the parent’s choice.” To qualify as an approved private
school, among other statutory requirements, the school must be “nonsectarian.”
Three sets of parents sued the state, arguing that the restriction on using tuition assistance payments at
sectarian schools violated both of the Religion Clauses and the Equal Protection Clause of the
Constitution. (Accordingly, the case involves only indirect aid to religious schools and did not address the
direct aid aspects of the program relating to contracts.) The district court ruled for the state, and on
appeal, the U.S. Court of Appeals for the First Circuit also rejected each of the three constitutional
challenges. With respect to the Free Exercise Clause challenge, the appeals court characterized the
program as imposing “a use-based restriction.” After evaluating whether the restriction was nonetheless
equivalent to a status-based distinction, the court concluded that Maine had permissibly required “public
educational instruction to be nonsectarian for reasons that reflect no hostility to religion” and the
exclusion instead reflected “legitimate concerns about excessive entanglement with religion.”
The parents appealed this decision to the Supreme Court, which agreed to hear the case on July 2, 2021.
Majority Opinion
In an opinion authored by Chief Justice Roberts, a six-Justice majority concluded that Maine violated the
Free Exercise Clause by barring tuition assistance payments to sectarian schools. The majority ruled that
the “principles applied in Trinity Lutheran and Espinoza suffice to resolve this case,” rejecting Maine’s
two attempts to distinguish Trinity Lutheran. Maine had first argued its program was designed to provide
a public education, which inherently entailed a secular education. The Court disagreed, ruling that the
state could not recast a discriminatory exclusion as a permissible funding condition. Second, seizing on
the possible distinction in Trinity Lutheran between religious status and religious use, the state said it
excluded sectarian schools based on concerns about public funds being used for religious activities. The
Court accepted the state’s assertion that it was excluding the schools based on their religious use of funds
rather than merely their religious identity. Nonetheless, the Court held that “use-based discrimination” is
just as “offensive to the Free Exercise Clause,” at least in the context of a “neutral” indirect benefit
program that did not violate the Establishment Clause. The majority emphasized that religious activities
are at the core of a religious school’s mission and stated that attempting to scrutinize whether a school is
using funds for religious purposes would “raise serious concerns about state entanglement with religion
and denominational favoritism.”
Accordingly, as in Trinity Lutheran and Espinoza, the Court ruled the exclusion unconstitutional under a
strict scrutiny analysis, saying the religious discrimination could not be justified by an interest in
separating church and state beyond what was already required by the Establishment Clause. Although
Locke had recognized that states have some interest in the separation of church and state, the Carson
majority said Locke recognized only a “narrow” antiestablishment interest that could not be extended
“beyond . . . vocational religious degrees.”
Dissenting Opinions
Justice Breyer dissented and was joined by Justice Kagan and (in part) Justice Sotomayor. In short,
Justice Breyer would have held that the Constitution “sometimes allows a State to further
antiestablishment interests by withholding aid from religious institutions,” and that “Maine’s nonsectarian
requirement [fell] squarely within the scope of that constitutional leeway.” He argued that the distinction
between excluding religious entities versus preventing religious uses of funds was “important” given that
“the very point of the Establishment Clause is to prevent the government from sponsoring religious
activity itself.” Accordingly, he believed Maine could permissibly conclude that “government payment for
this kind of religious education would be antithetical to the religiously neutral education that the

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Establishment Clause requires in public schools,” and that a “religiously integrated education” would not
be “a replacement for a civic-focused public education.”
Justice Sotomayor filed a separate dissent in which she claimed the majority opinion “continue[d] to
dismantle the wall of separation between church and state that the Framers fought to build.” She also
emphasized that the opinion did not address the contracting portions of the Maine program and said that
in her understanding, requiring school districts to “contract directly with schools that teach religion”
would “blatantly violate the Establishment Clause.”
Considerations for Congress
Carson is likely to have some effect on how existing federal programs are evaluated under the Religion
Clauses. A number of federal funding schemes restrict the religious use of funds. After Trinity Lutheran
and Espinoza, the Department of Justice expressed concern about two federal programs in particular: one
program excluding certain sectarian institutions from capital financing for historically black colleges and
universities and a second program excluding religiously affiliated schools from a charter school grant
program. The government’s conclusions about those programs appear to be consistent with the decision in
Carson, to the extent it read those programs as relying on a status-based distinction.
However, in those pre-Carson opinions, the Department of Justice concluded that two additional
restrictions on religious uses of funds did not necessarily violate the Free Exercise Clause. The first
program prohibited direct loans from being used for specific religious activities—and a number of other
federal programs similarly prohibit using direct funds for sectarian activity. The second program required
charter schools to be “nonsectarian” in their operations, similar to the Maine requirement struck down in
Carson. Carson might provide more support for Free Exercise Clause challenges to prohibitions on
religious uses.
A key difference between the Maine requirement and these federal provisions, though, is that the latter
appear to involve direct funding schemes. As discussed above, the Supreme Court has drawn a
constitutional distinction between direct financial aid, which it has said may not be used for religious
activities, and indirect financial aid, which may be used for religious activities so long as the government
operates the program in a way that is neutral towards religion. Accordingly, Carson itself might not
implicate federal provisions prohibiting direct assistance from being used for religious activity,
particularly if those provisions are not applied to exclude religious entities from a program but merely
restrict how both religious and nonreligious entities may use public funds. Instead, under prevailing
precedent, the government may still violate the Establishment Clause if it directly funds religious activity.
However, that Establishment Clause precedent on funding religious activity was based in part on an
approach that the Court has now abandoned. Much of the Establishment Clause jurisprudence
summarized above was based on Lemon v. Kurtzman, a Supreme Court case instructing courts to evaluate
Establishment Clause challenges by looking to whether a government action had the impermissible
purpose or effect of advancing or endorsing religion, or whether the action created an excessive
entanglement between church and state. As discussed in this CRS Report, the Court had previously struck
down financial aid programs under the Lemon test when, for example, a program had the effect of
“provid[ing] desired financial support for nonpublic, sectarian institutions” or, as in Lemon itself, when
programs created an entanglement likely to unduly involve the state in details of religious activity.
On July 27, 2022, the Supreme Court’s opinion in Kennedy v. Bremerton School District (discussed in this
separate Legal Sidebar) stated that the Court had broadly “abandoned” use of the so-called Lemon test.
Instead, the Court held, courts should evaluate the Establishment Clause by reference to “historical
practices and understandings,” looking to “original meaning and history.”

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Kennedy did not involve a government funding practice, but the opinion advised courts in all future
Establishment Clause challenges to ask whether specific government practices are consistent with original
meaning and historical practices. Pre-Lemon cases that evaluated government funding in part by reference
to original understandings and historical practices could inform how courts perform that inquiry. But
while the Supreme Court announced in Kennedy that the Lemon test was “abandoned,” it did not overrule
Lemon—or other precedent applying the Lemon test to conclude that specific funding schemes violated
the Establishment Clause. Accordingly, lower courts must still follow any Lemon-based Establishment
Clause rulings that appear directly applicable based on the facts of the case, including those involving
government funding. It is unclear how courts will apply those rulings as precedent while also following
the Supreme Court’s direction to no longer apply the Lemon test. Carson, moreover, approved of Maine’s
tuition assistance program under the Establishment Clause without reference to analogous historical
practices. The opinion, issued a week before Kennedy, thus suggests that the Supreme Court may continue
to allow the type of indirect funding schemes that it had previously approved under the Lemon test.
Accordingly, there is some uncertainty regarding how at least certain types of financial aid may be
reviewed in the future.

Author Information

Valerie C. Brannon

Legislative Attorney




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