Carson v. Makin - Separation of Church and State

In October 2021, we filed an amicus brief in the Supreme Court of the United States arguing that a Maine law prohibiting the use of taxpayer funding for religious instruction at religious schools was constitutional. For the first time, the Court explicitly required taxpayers to support religious education.

Most students in Maine attend a public school, but some areas don’t have a public school. To ensure every child has access to a free, publicly funded education, students in school districts without their own public secondary schools can obtain public tuition assistance to attend an “approved” private school.

Maine law prohibited the use of public funding for religious instruction. Three families in Maine challenged the restriction, arguing the prohibition on tuition assistance for religious education violated the Free Exercise Clause of the First Amendment.

In our brief, we explained that under the Free Exercise Clause, the state is not required to fund religious instruction and cannot force taxpayers to fund religious beliefs they do not support. We argued that the use of public funding to support religious instruction would coerce taxpayers since they cannot entirely dictate how their tax dollars are spent.

Before this case, the Supreme Court had long held that states had a strong interest in avoiding the public funding of religious instruction.

This case was originally filed in August 2018 by the Institute for Justice and the First Liberty Institute, which demanded that Maine’s taxpayer-funded tuition program pay for religious instruction at Bangor Christian School in Bangor and Temple Academy in Waterville. Both schools would use the taxpayer-funded tuition to teach students religious doctrine and train them in religious rites and observances.

Both schools also discriminate in admissions and employment against non-Christians and LGBTQ people. For example, Temple Academy not only prohibits gay and lesbian students, but also refuses to admit students with gay or lesbian parents. And students who come out as LGBTQ at Bangor Christian must renounce their sexual orientation or gender identity after counseling, or be expelled.

In addition, teachers at both schools must be born-again Christians “who know the Lord Jesus Christ as Savior.” And Temple Academy requires teachers to sign an employment agreement stating that “God recognize[s] homosexuals and other deviants as perverted.”

The Maine law prohibiting the use of public tuition funds at schools that teach religious doctrine had been challenged on four previous occasions, in both state and federal court. It was upheld as constitutional all four times.

The U.S. District Court for the District of Maine originally sided with the State of Maine, ruling the state could block the use of taxpayer money for religious instruction at religious schools. The U.S. Court of Appeals for the First Circuit affirmed the trial court’s ruling, noting that it had rejected similar challenges twice before.

On June 21, 2022, the U.S. Supreme Court reversed longstanding precedent, ruling the restrictions on Maine’s tuition-assistance program were unconstitutional under the Free Exercise Clause of the First Amendment. This ruling established that if states implement a tuition-assistance program, they cannot exclude religious institutions.

The decision marks the first time that the Court has explicitly required taxpayers to support religious instruction and expands the Court’s 2020 ruling in Espinoza v. Montana Department of Revenue. There, the Court held that the Free Exercise Clause prohibited a state from excluding religious schools from private aid programs “solely because of their religious character.”

This erosion of the bedrock principle of separation of church and state represents a threat to the religious liberty and civil rights of all Maine people.