Maine’s Tuition Assistance Rule Violated the First Amendment, Supreme Court Says

Maine’s tuition assistance rule barred use of state funds at religious schools, which violated the First Amendment, Court says.

A “nonsectarian” requirement included with a tuition assistance program offered in Maine violated the First Amendment’s Free Exercise of Religion Clause, the United States Supreme Court ruled last month.

The 6–3 decision in Carson v. Makin may make it easier for religious schools nationwide, at least in some cases, to benefit from financial aid made available to use at other public and private schools.


Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition.

Most private schools are eligible to receive the payments, so long as they are “nonsectarian,” meaning the schools are not religious in nature. The requirement raised two questions: Does such a restriction violate the First Amendment’s Free Exercise Clause? And does the absence of such a restriction violate the First Amendment’s Establishment Clause prohibiting state sponsorship of religion?

The Supreme Court concluded the presence of the requirement did violate the Free Exercise Clause, while also finding the absence of the requirement would not violate the Establishment Clause.

The Court said:

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. . . .

[Justice Breyer’s dissenting opinion] stresses the importance of “government neutrality” when it comes to religious matters, but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.

The Court turned to two past rulings

In reaching its decision, the Court relied on two of its previous decisions—Trinity Lutheran and Espinoza.

Trinity Lutheran Church v. Comer

In Trinity Lutheran Church v. Comer, 137 S.Ct. 2012 (2017), the Court considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires. The Missouri Department of Natural Resources maintained an express policy of denying such grants to any applicant owned or controlled by a church, sect, or other religious entity.

The Trinity Lutheran Church Child Learning Center applied for a grant to resurface its gravel playground, but the department denied funding on the ground that the center was operated by a church. The Court deemed it “unremarkable in light of our prior decisions” to conclude that the Free Exercise Clause did not permit Missouri to “expressly discriminate against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”

While it was true that Trinity Lutheran remained “free to continue operating as a church,” it could enjoy that freedom only “at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center [was] otherwise fully qualified.” Such discrimination, the Court said, was “odious to our Constitution” and could not stand.

Espinoza v. Montana Department of Revenue

In Espinoza v. Montana Department of Revenue, 140 S.Ct. 2246 (2020), the Supreme Court held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination,” violated the First Amendment’s Free Exercise of Religion Clause by prohibiting families from using otherwise available scholarship funds at the religious schools of their choosing.

The Court observed that “a State need not subsidize private education [but] once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” The Court concluded:

Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. . . . The provi­sion plainly excludes schools from government aid solely be­cause of religious status,” [just as in Trinity Lutheran]. . . .

The Free Ex­ercise [of religion] Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqual­ifying the religious from government aid as Montana did here. . . .

[The Constitution] condemns discrimination against religious schools and the families whose children attend them. They are “member[s] of the community too,” and their exclusion from the scholarship program here is “odi­ous to our Constitution” and “cannot stand” (citing Trinity Lutheran).

The Court’s conclusion in Maine

The Court concluded in Maine’s Carson case:

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

What this means for churches

What is the importance of this case? Most importantly, it will allow religious schools nationwide, at least in some cases, to benefit from financial aid made available to other schools (i.e., public and private secular schools).

Religious schools cannot be excluded from such aid solely on the basis of their religious status. As the Court concluded, religious schools are “members of the community too,” and their exclusion from the scholarship program here is “odi­ous to our Constitution” and “cannot stand” (citing Trinity Lu­theran).

This case may contribute to a greater degree of school choice, depending on current and future state-enabling legislation.

Carson v. Makin, 596 U.S. ____ (2022)

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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