Carson v. Makin

Litigation: This case originated in light of the landmark U.S. Supreme Court ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). On August 21, 2018, the Institute for Justice and First Liberty Institute filed this litigation on behalf of parents in Maine who continue to seek religious liberty in their choice of education. After an adverse ruling at the district court, the case was appealed to the U.S. Court of Appeals for the First Circuit, which ruled that Maine has the right to deny funding to a parent to pay tuition for a child at a school where religion is part of the school day. The Court distinguished this case from Espinoza (see Montana) by opining that Espinoza involved a violation of the Free Exercise Clause, whereas allowing state funds to be used for education at a religious school that would use the funds in part for religious activities would be a violation by the state of the Establishment Clause. Opposed to parents seeking access to religious private schools: ACLU, ACLU of Maine, AFL-CIO, American Atheists, American Federation of State, County and Municipal Employees, Americans United for Separation of Church and State, Anti-Defamation League, Bazelon Center for Mental Health Law, Center for Law and Education, Central Conference of American Rabbis, Council of Administrators of Special Education, Equal Rights Advocates, Freedom from Religion Foundation, GLSEN, Hindu American Foundation, Interfaith Alliance Foundation, Lambda Legal Defense and Education Fund, Maine Education Association, Maine School Boards Association, Maine School Superintendents Association, Massachusetts Association of School Committees, Men of Reform Judaism, National Council of Jewish Women, National Education Association, National School Boards Association, National Women’s Law Center, New Hampshire School Boards Association, People for the American Way Foundation, Public Funds Public Schools, Reconstructionist Rabbinical Association, Rhode Island Association of School Committees, Southern Education Foundation, Union for Reform Judaism, Women of Reform Judaism, In support of parents: Agudath Israel of America, American Association of Christian Schools, American Center for Law and Justice, American Federation for Children, Americans for Prosperity Foundation and yes. every kid, Anglican Church in North America, Association of Christian Schools International, Christian Legal Society, Council for American Private Education, Council for Christian Colleges & Universities, Council of Islamic Schools in North America, EdChoice, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Evangelical Council for Financial Accountability, Family Foundation, Foundation for Moral Law, Illinois Family Institute, Innovative Schools, Institutional Religious Freedom Alliance, Jewish Coalition of Religious Liberty, Liberty Justice Center, Lutheran Church-Missouri Synod, Maine Heritage Policy Center, National Association of Evangelicals, National Legal Foundation, Partnership for Inner-City Education, Queens Federation of Churches, States of Arkansas, Alabama, Arizona, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, and West Virginia, Union of Orthodox Jewish Congregations of America.

Outcomes: On June 26, 2019, the U.S. District Court for the District of Maine rejected plaintiff parents’ claim that Maine’s exclusion of religious schools from their town tuitioning program, a generally available public benefit program, violates the Free Exercise, Establishment, Free Speech, Equal Protection and Due Process Clauses of the First and Fourteenth Amendments to the U.S. Constitution. The Institute for Justice appealed the case to the U.S. Court of Appeals for the First Circuit. Oral arguments were heard January 8, 2020; on October 29, 2020, the First Circuit Court of Appeals delivered a unanimous en banc ruling against plaintiff parents. The Court ruled that Maine has the right to deny funding to a parent to pay tuition for a child at a school where religion is part of the school day. This case was appealed to the U.S. Supreme Court in a Petition for Writ of Certiorari. On July 2, 2021, the U.S. Supreme Court accepted the case. Oral arguments were heard December 8, 2021. Decision pending.

Why it Matters: Although town tuitioning is constitutional in Maine, there have been many challenges regarding the exclusion of religious schools. In 1981, the Maine legislature banned religious schools from participating in the Town Tuitioning Program that was first established in 1873. In 1999, the Maine Supreme Judicial Court upheld the exclusion of religious schools and the U.S. Supreme Court declined to review. Bagley v. Raymond School Department, 728 A.2d 127 (Me.), cert. denied, 528 U.S. 947 (1999). Religious school exclusion was also upheld in Strout v. Commissioner, Maine Department of Education, 178 F.3d 57 (1st Cir. 1999), and in Eulitt v. Maine Department of Education, 386 F.3d 344 (1st Cir. 2004). After the 2002 U.S. Supreme Court decision upholding the constitutionality of vouchers in Cleveland, the Institute for Justice, representing Maine families, asked a Maine court to overturn the 1981 law, but the exclusion of religious options was upheld. Anderson v. Town of Durham, 895 A.2d 944 (Me. 2006), cert. denied, 127 S.Ct. 661, 166 L.Ed.2d 512. Religious exclusion was later upheld in Joyce v. State, 951 A.2d 69 (Me. 2008).

Effects: Children using town tuition funding in Maine enjoyed attending religious schools until 1980, when a cautionary opinion from the state’s attorney general urged the legislature to avoid litigation by excluding religious schools as choices for parents. After Espinoza, it is clear that excluding religious schools based on their status as religious schools is contrary to the federal constitution’s First Amendment Free Exercise Clause. If the U.S. Supreme Court decides to accept this case, hopefully the high court will decide whether excluding religious schools based on the many ways in which funds are used, a question involving the First Amendment’s Establishment Clause, will be as clearly and conclusively addressed as the ruling in Espinoza.

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