ACLU Comment on Supreme Court Decision in Carson v. Makin

WASHINGTON — The Supreme Court issued a ruling today in Carson v. Makin that requires the state of Maine to fund religious education at private religious schools as part of its tuition assistance program. The program pays for students to attend private school if their town does not have a public high school.

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

Along with several other allies, the American Civil Liberties Union and the ACLU of Maine filed an amicus brief in Carson, arguing that the court should follow its longstanding precedent and recognize that states need not fund religious instruction and activities. Today’s decision, however, disregards that precedent. As Justice Sotomayor observed in dissent, this ruling “leads us to a place where separation of church and state becomes a constitutional violation.”

Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, said:

“Maine’s policy to avoid government-funded religious education is rooted in our nation’s historical commitment to the separation of church and state. Today’s decision, like others in recent years, undermines this vital protection by forcing taxpayers to support religious instruction and indoctrination. It is the opposite of true religious freedom and a betrayal of our country’s founding principles.”

Zachary Heiden, chief counsel at the ACLU of Maine, said:
“For over 20 years, every court that has heard a challenge to Maine’s law that prohibits public funding of religious education has upheld its constitutionality. But this Supreme Court has rendered a decision completely contrary to the founding principle of separation of church and state. The First Amendment hasn’t changed, and Maine’s program hasn’t changed. Today’s decision tells us none of this matters.”

Carson v. Makin is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket

The ACLU’s brief in the case is here: https://www.aclu.org/cases/carson-v-makin?document=carson-v-makin-amici-brief-0

The Supreme Court’s opinion is here: https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf