# Carson v. Makin (2022) **596 U.S. 767** — the SCOTUS decision that **completed the constitutional transition** from "religious schools may not be excluded based on religious **status**" (*[[Trinity Lutheran v. Comer]]*, *[[Espinoza v. Montana]]*) to "religious schools may not be excluded based on religious **use**" — meaning their actual provision of religious instruction. Decided 6-3 by the Roberts Court on June 21, 2022. Maine has rural areas without local public secondary schools; the state provides tuition assistance to send students to approved private schools — but only "nonsectarian" private schools, excluding those that provide religious instruction. Two Maine families challenged the exclusion. The Roberts majority held that the **status/use distinction** that *Trinity Lutheran*'s footnote 3 had reserved was unworkable: excluding schools because they would *use* funds for religious instruction was just another form of religious discrimination. **States that fund private education cannot exclude schools that provide religious instruction.** This was the doctrinal endpoint of the *[[Zelman v. Simmons-Harris]]* → *Trinity Lutheran* → *Espinoza* → *Carson* arc — religious-school inclusion in state-funded education programs is now constitutionally **required**, not just permitted. The [[Institute for Justice]] represented the parents. *Carson* set up the next frontier: **directly publicly funded religious charter schools** — tested in the 2025 *[[St. Isidore Catholic Charter Case]]*. ## Lower Court History The **First Circuit** upheld Maine's "nonsectarian" requirement, drawing a distinction between *Trinity Lutheran*'s prohibition on status-based exclusions and what the First Circuit characterized as a permissible **use-based** exclusion — Maine wasn't excluding schools because they *were* religious, but because they would *use* funds for religious instruction. This was precisely the status/use distinction that *Trinity Lutheran*'s footnote 3 had reserved. The Supreme Court granted certiorari to resolve what had become the controlling open question in the school-choice doctrinal arc. ## The Decision: 6-3 | Justice | Position | Notes | |---------|----------|-------| | **Roberts** (majority) | Wrote opinion | Status/use distinction is constitutionally irrelevant | | **Thomas** | Joined majority | | | **Alito** | Joined majority | | | **Gorsuch** | Joined majority | | | **Kavanaugh** | Joined majority | | | **Barrett** | Joined majority | | | **Breyer** | Dissent | Warned of Establishment Clause collapse | | **Sotomayor** | Dissent | "Today, the Court leads us to a place where separation of church and state becomes a constitutional violation" | | **Kagan** | Dissent | Joined Breyer | ### The Status/Use Demolition Roberts — who had authored footnote 3 in *Trinity Lutheran* reserving the status/use question — now wrote that the distinction was constitutionally irrelevant. The majority held that excluding schools because they would *use* public funds for religious instruction was functionally identical to excluding them because they *are* religious. "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." This completed the doctrinal arc: after *Carson*, any state that funds private education — through vouchers, ESAs, tax-credit scholarships, or tuition assistance — **must include religious schools, even those that provide explicitly religious instruction**. ### The Dissents **Breyer** warned that the majority had effectively collapsed the Establishment Clause into the Free Exercise Clause — any state effort to maintain church-state separation in public funding now constituted religious discrimination. He argued the Founders envisioned "play in the joints" between the two clauses, a zone where states could choose to be more separationist than the Establishment Clause required. **Sotomayor** wrote the most pointed dissent: "Today, the Court leads us to a place where separation of church and state becomes a constitutional violation." She argued the majority's logic would eventually require states to directly fund religious instruction — and that the progression from *Trinity Lutheran* (playgrounds) to *Espinoza* (scholarships) to *Carson* (religious instruction) demonstrated exactly the slippery slope she had warned about in her *Trinity Lutheran* dissent. ## Maine's Legislative Response Maine's response to *Carson* was immediate and strategic. The state **amended its Human Rights Act** to require all schools receiving tuition assistance to comply with Maine's anti-discrimination protections, including protections for LGBTQ students and staff. This created a **poison pill**: religious schools that discriminate based on sexual orientation or gender identity — as many Catholic and evangelical schools do — would need to choose between state funding and their discriminatory policies. The result was that only **one school** — Cheverus High School, a Jesuit institution in Portland — initially opted to participate in the tuition assistance program under the new rules. Schools like Bangor Christian Schools and Temple Academy (the institutions in the *Carson* case itself) declined to participate rather than accept the non-discrimination requirements. This triggered a **follow-on legal battle**: [[First Liberty Institute]] and Consovoy McCarthy filed suit challenging Maine's non-discrimination requirements as an unconstitutional end-run around *Carson*. That litigation was at the First Circuit as of early 2025, testing whether states can effectively nullify *Carson* through anti-discrimination conditions. ## KB Significance *Carson* is the **doctrinal endpoint** of the twenty-year school-choice litigation campaign that began with *[[Zelman v. Simmons-Harris]]*. The arc: 1. *Zelman* (2002): States **may** fund religious schools (permission) 2. *[[Trinity Lutheran v. Comer]]* (2017): States **may not** exclude based on religious **status** (prohibition, with footnote 3 carve-out) 3. *[[Espinoza v. Montana]]* (2020): Blaine Amendments **cannot** justify exclusion (barrier removal) 4. *Carson* (2022): States **may not** exclude based on religious **use** (mandate complete) After *Carson*, the only remaining frontier is whether states must directly operate religious institutions as public schools — the question presented in *[[St. Isidore Catholic Charter Case]]* (2025), which deadlocked 4-4 and set no national precedent. Maine's poison-pill strategy — imposing anti-discrimination conditions that religious schools can't accept — may prove to be the most consequential post-*Carson* development. If upheld, it offers a template for states to comply with *Carson* while functionally preventing most religious schools from participating. If struck down, it eliminates the last regulatory tool states have to manage the church-state boundary in education funding. ## See Also - [[Zelman v. Simmons-Harris]] — The foundational case - [[Trinity Lutheran v. Comer]] — Established non-exclusion principle; footnote 3 that *Carson* demolished - [[Espinoza v. Montana]] — Neutralized Blaine Amendments - [[St. Isidore Catholic Charter Case]] — The next frontier: religious charter schools - [[Institute for Justice]] — Litigated the case; the culmination of a planned three-case strategy - [[School Choice Ecosystem]] — The movement - [[School Choice]] — The concept