An upcoming major Supreme Court case, Carson v. Makin, concerns an education policy in the state of Maine that prohibits public tax money in the form of financial aid from going towards tuition of students in private religious schools. Parents have brought suit. This case will likely provide the Supreme Court with an opportunity for further clarification as to the relationship between government and religious interests.  

The debate over religious funding is not a new concept to the Supreme Court as in recent years the Supreme Court has heard the Trinity Lutheran and Espinoza matters. As a recap, Trinity Lutheran concerned church access to public funding to sustain its recreational grounds. There, the Supreme Court held that the state cannot discriminate against a religious institution in granting them access to the funds.  

In Espinoza, the Supreme Court considered a Montana tax-credit program that allowed for scholarship funding for private schools. Montana’s constitution barred any payment to religious institutions and schools. The Montana Supreme Court invalidated the program entirely to prevent religious schools from receiving the funding. The U.S.  Supreme Court held that the state cannot discriminate against private schools that were religious in nature as it constituted a violation of their Free Exercise rights. The U.S. Supreme Court invalidated the decision of the Montana Supreme Court. 

Following these two major cases, the Carson matter builds off the issues of public funding towards religious institutions. Here, it appears that the Supreme Court would be inclined to rule in favor of the parents who brought this suit and seek to have access to public financial aid for private religious schools based on the recent precedent in the religious funding cases. We do note, however, that there are alternate paths to come out in favor of the parents and invalidate the state’s measure that clearly shows animus towards religion. At the Supreme Court, a plausible deciding factor will be how narrow or broad the Court wants to rule in the parents’ favor and the degree of willingness to address long-standing law and religion debates at the Supreme Court.

The most natural reading to address Carson could possibly be through applying the Establishment Clause. Chief Justice Roberts, however, may be reluctant to go in this direction with its potential for a wider impact on Establishment Clause jurisprudence. For institutionalist concerns it is not unrealistic for him to seek more justices across a wide range of ideological spectrums to join a narrower opinion based on the Free Exercise Clause. If he is in the majority, he has the discretion to compose the opinion or assign it to another justice, thus it is unlikely you will see an Establishment Clause based majority opinion from a stricter constitutionalist such as Justice Thomas. 

The more natural Establishment Clause based opinion, however, void of institutionalist concerns would likely consider the following principles. The Establishment Clause in the First Amendment is as follows: 

“Congress shall make no law respecting an establishment of religion. . .” 

On its face, tax money to support students attending private religious schools does not infringe on the spirit of the Establishment Clause. First, religious schools are just a form of private school and there are allocations already going towards secular private schools, thus exclusion of private religious schools could be viewed as discriminatory. Second, religious schools are broad in nature, not specifying a form of religion that would benefit from the financial aid supported by tax revenue. The state is not promoting a specific religious establishment likened to the Puritan or Anglican style in the early foundations of the nation rather it is supporting the private religious education experience as a general matter in conjunction with other forms of valid education. It does not constitute a state endorsement of a particular religion or creed rather it is simply state supported among other educational initiatives. 

This case also provides an opportunity to reform if not overturn the Lemon test that has been largely abandoned with the Roberts Court, although not explicitly overruled. This test, derived from the 1971 case, Lemon v. Kurtzman provides that legislation concerning religion must (1) have a secular legislative purpose; (2) the principal and primary effect of the statute must neither advance nor inhibit religion and (3) the statute must not result in an excessive government entanglement with religion .

The Lemon test is filled with contradiction especially when considering prongs (1) and (2). The law at issue must have a secular legislative purpose in prong 1, however in prong 2 the principal and primary effect of the statute may not inhibit religion. To put things in perspective, if a secular purpose is paramount, by its very nature it is restricting influences of religion from other sources, most specifically under the Carson facts when considering the role of education. The Maine policy expressly refused to offer parents of students any religious affiliated private school benefits with regard to financial aid. This is discriminatory and inhibits religion based on the “staple” secular intent of the policy. The original understanding of the Establishment Clause was to discourage a state religion that controlled levels of government such as the Church of England and forms of theocracy. The allowance of public funding to support private school financial aid does not pose a threat to the government system it is simply helping provide equal education opportunities. In the twentieth century, the Supreme Court refused to recognize this core original understanding of the Establishment Clause of not compelling or promoting a state religion and used as its vehicle the school prayers cases and cases involving school transportation to begin selectively ushering faith out of the public forum based on misconstrued separationist principles. 

Finally, the third prong of the Lemon test is very vague in nature as it discusses excessive government entanglement. This pong is not pointed and specified and gives the judiciary a blank check to undermine the intent and principles bound in the Establishment Clause if the government becomes “too relational” with religion. Here, this concept creates a further cloud when considering religious education. Private religious schools do have religion as part of the curriculum, however, the staples of other areas such as math, science, history and writing are also within the curriculum and resemble the public education experience. Supporting a religious school does not create an excessive entanglement with the concept of religion in of itself, it is first and foremost supporting an educational initiative that contains a religious component, not one that is actively promoting and threatening a theocracy and “government” sponsored church. 

Despite the principled objections to the Lemon test and opportunity in Carson to reform the error filled plague that stemmed from the Supreme Court jurisprudence on the Establishment Clause, the Free Exercise Clause poses a more likely means for the Supreme Court to address Carson as it presents a less controversial approach.  

A Free Exercise opinion would likely not depart significantly from the recent Espinoza legal precedent which based its reasoning to invalidate religious education disabilities propounded by the state on the concept of “protecting religious observers against unequal treatment” and against “laws that impose specific disabilities on the basis of religious status.” As discussed earlier, Espinoza relied on some of the reasoning from the Trinity Lutheran decision, namely that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character imposes a penalty on the Free Exercise of religion that triggers the most exacting scrutiny.” 

This reasoning that invokes language discussing the discrimination towards religion provides a plausible resolution when addressing the state’s attacks against institutions related to faith, however, it is approaching the issue from a more indirect view. While Catholic schools are institutions that exist to allow for an atmosphere of faith to be incorporated into a broader educational curriculum, the actions of the government are not directly stopping them from articulating their mission, rather the government is failing to tender a public benefit based upon a misconstrued view of church and state relations. It is not providing a public resource from which they should be entitled to, but it is not preventing them from having the right to provide an educational experience for students. This dispute would be best adjudicated under the previously discussed Establishment Clause doctrine. A clearer Free Exercise analysis should be applied to the small business and bakery matters where the state is threatening the existence of the business and saddling it with fines and lawsuits based on its faith beliefs. This is not at issue here, but the expansion of the Free Exercise Clause by Chief Justice Roberts may in fact further gain traction in this opinion because it would not upend decades of failed Establishment Clause jurisprudence and gain more support from the moderate and liberal justices on the Court. 

While it is unlikely to be addressed here, the Establishment Clause analysis provides a more comprehensive foundation and clarifies that public financial aid to be allotted towards educational advancement in private religious schools should not be construed as a state endorsement of a religion or creed.  It is, however, supporting parents and students in the holistic sense with supporting general educational initiatives that include a religious component. Returning to this basic principle would in fact begin to positively reform our Establishment Clause jurisprudence and return it to its original intent while making strides to remove religion as a target of discrimination in the public forum.