Some thoughts on today's Supreme Court decision on funding for religious schools

The outcome in Carson v. Makin was largely foreshadowed by earlier decisions, and some of the critiques are misplaced

Erin Schaff/Pool via REUTERS

Today, the Supreme Court issued its opinion in Carson v. Makin, a free exercise challenge to a Maine public assistance program. The state provides private school tuition assistance to parents who live in school districts without public secondary schools. But it limits the benefit to “nonsectarian schools.”

In Carson, a 6-3 majority (with Justices Breyer, Sotomayor, and Kagan dissenting) held that the exclusion of sectarian schools violates the Free Exercise Clause: if Maine offers the benefit, it must allow parents to use it at religious as well as non-religious schools. Chief Justice Roberts’ majority opinion noted “we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

The legal framing

Today’s outcome is unsurprising in light of the Court’s recent funding cases at the intersection of the Free Exercise and Establishment Clauses.

As the Carson majority notes, the Court’s 2002 decision in Zelman v. Simmons-Harris made clear that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”

In a 2017 decision, Trinity Lutheran v. Comer, the Court held that Missouri’s categorically disqualifying churches from a playground-resurfacing program solely because of their religious character violated the Free Exercise Clause.

In 2020, relying extensively on Trinity Lutheran, the Court held in Espinoza v. Montana Department of Revenue that Montana’s “no-aid” provision discriminated against religious schools and thus violated the Free Exercise Clause.

The Court has recognized one exception to this line of cases. In its 2004 decision, Locke v. Davey, the Court held that a state’s exclusion of a college scholarship for students pursuing degrees in devotional theology did not violate the Free Exercise Clause.

The Carson majority distinguished Locke on the basis that the earlier case involved a “historical and substantial” tradition against directly aiding ministers. I’ve long found this distinction flimsy, particularly because the government does directly fund ministers in other contexts, including military and prison chaplains, legislative chaplains, and aid to clergy under the recent Paycheck Protection Program during the COVID-19 pandemic. Locke’s reliance on a longstanding tradition against aiding ministers is difficult to square with our actual practices. In my view, the Court would have been better off overruling Locke given its inconsistent reasoning. But its continued viability does little to alter the trajectory of Trinity Lutheran, Espinoza, and now Carson.

Broader cultural observations

The lineup in Carson is unsurprising and largely tracks the votes in Trinity Lutheran and Espinoza. Judges and legal scholars disagree about the best interpretation of the religion clauses and whether today’s holding is supported by that interpretation. I tend to think the majority has the better argument, but I can appreciate some of the competing views from the dissents and scholars critical of the earlier line of cases.

Instead of the doctrine, however, I would like to focus on some of the rhetoric from the dissents and commentators that in my view misdescribes the role of constitutional protections for religion in a pluralistic society. I’ll make three normative claims prompted by this rhetoric: (1) religious freedom does not mean harmony; (2) religious freedom means living with views we don’t like; and (3) generally available funding means funding views we don’t like.

Religious freedom does not mean harmony

Justice Breyer’s dissent in Carson asserts that the religion clauses “should be interpreted to advance their goal of avoiding religious strife.” He’s made this argument in other cases, too. But with respect, I don’t think that “avoiding religious strife” has much to do with the religion clauses. To be sure, we are rightly concerned about imposing religious beliefs and practices on others through coercion and force. And the religion clauses, like other civil liberties protections, must restrain violence (as I recently argued in support of protections for the religious minority Falun Gong). But the idea that religious freedom means avoiding strife among adherents of different faiths in a pluralistic society has never been part of our law or history. To the contrary, our deeply held religious differences point toward differences over ultimate things that will almost certainly create conflict.

This is also true of the rest of the First Amendment. The rights to free speech, press, religion, and assembly are not intended to avoid strife. Rather, our founders assumed that religious and other differences were destabilizing realities that had to be accounted for, not overcome. James Madison argued in Federalist 10 that the “latent causes of faction” were “sown in the nature of man.” He elaborated:

A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for preeminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good.

Factions, for Madison, were antithetical to “the permanent and aggregate interests of the community.”

But these factions—these assemblies—are nonetheless worthy of protection. As I wrote in my first book, Liberty’s Refuge: The Forgotten Freedom of Assembly:

[T]he social vision of assembly does more than enable meaningful dissent. It provides a buffer between the individual and the state that facilitates a check against centralized power. It acknowledges the importance of groups to the shaping and forming of identity. And it facilitates a kind of flourishing that recognizes the good and the beautiful sometimes grow out of the unfamiliar and the mundane.

The deep divisions in our pluralistic society inevitably produce strife, but they also allow us to pursue different beliefs and values, and to live those out in different communities. The First Amendment presumes a willingness to endure the resulting strife rather than overcome it.

Religious freedom means living with views we don’t like

Some critics of Carson seem concerned less about free exercise doctrine than about the kinds of values promoted by certain religious institutions who will now benefit from state funding. For example, in an early assessment of Carson, commentator Hemant Mehta writes:

Maine taxpayers will now have to fund Creationism, homophobia, anti-transgender misinformation, and Sunday School nonsense masquerading as actual history and science . . . if parents taking advantage of the state’s program choose to have their kids attend one of those private Christian schools.

Mehta objects to funding religious views he doesn’t like. But it’s not clear to me how these normative disagreements play into free exercise doctrine. The constitutional argument should be whether the religion clauses allow or prohibit funding of religious institutions, not what specific institutions teach. If the Court is correct that the Free Exercise Clause requires religious institutions to be included in generally available funding schemes, that inevitably means state funding for schools with mutually incompatible values.

In fact, this reality exists even if we set aside religious schools. The wide range of normative visions and curricular emphases among this country’s non-religious private schools means that state funding supports visions and viewpoints that we don’t like, that we find harmful to society, and that we believe are antithetical to the common good. And of course, we disagree about which of these schools are harmful and which are beneficial.

Generally available funding means funding views we don’t like

My final point ties back to what I believe is the fundamental question in cases like Carson: when the government offers a generally available funding program, must it fund all viewpoints, including religious ones?

I believe the answer is yes. I discuss generally available funding programs in my book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I suggest that these funding schemes are analogous to public forums and should be governed by the same principles. As the Court affirmed last month in Shurtleff v. City of Boston, a public forum must be viewpoint neutral and “religion constitutes a viewpoint.”

To set up the comparison between public forums and generally available funding programs, I use an illustration from the television show, Parks and Recreation:

When the Pawnee Parks & Recreation Department hosts a public forum, Pawnee tax dollars pay for Leslie Knope and her colleagues to prepare for the forum, to arrive early to set up chairs and make sure the microphones work, and to lead the discussion during the forum. Pawnee tax dollars pay for the building, the chairs, the lighting, and the sound system. All across America, in the real Pawnees, and in cities much larger, real Leslie Knopes spend real time and real dollars to host public forums. In other words, the public forum does not appear out of nowhere, with free meeting space for the forum and free electricity to keep the lights on. Government dollars pay for the spaces, the utilities, and the employees who make public forums possible. Facilitating pluralism means funding pluralism.

I then suggest that public forum principles should govern funding schemes like the benefit provided to charitable organizations through federal tax-exempt status. These principles should also govern a benefits program like the one at issue in Carson. In a pluralistic society in which we live out deep and irreconcilable differences, it doesn’t make sense to exclude from generally available resources the groups and viewpoints that we don’t like.

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There will be lots of commentary around today’s Carson decision. Try to read from both sides of the political aisle to see how people’s normative views about what’s good for society inform their views on the implications of today’s decision.

And I welcome your comments or questions about my own views.