Supreme Court Permits The Use Of State Taxpayer Funds For Religious Instruction

Civil Rights Policy Brief #189 | By: Rodney A. Maggay | June 23, 2022

Header photo taken from: Education Week




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Carson v. Makin – Maine Families Fight for School Choice in U.S. Supreme Court Appeal

Photo taken from: The Institute for Justice

Policy Summary

Petitioners David and Amy Carson and Troy and Angela Nelson are two couples that reside in Maine. Both families wanted to apply for Maine’s tuition assistance program in order to send their children to two separate “sectarian” schools. Both families were denied because Maine had previously determined that using state taxpayer funds to fund tuition for students at sectarian schools was a violation of the Establishment Clause of the First Amendment.

Maine’s tuition assistance policy was crafted in response to the population sparseness of the State. Because half of Maine’s 260 school administrative units (similar to a school district) do not have enough students to establish a public secondary school in the unit, Maine devised a public program whereby parents can choose another public school in another unit for their child to attend. Maine would then allow families and the school units use of the taxpayer funds to send the child to the school in the other unit. Maine also permits parents to choose a private school that is approved by the Maine Department of Education if they are “nonsectarian.” 

The only schools that cannot receive taxpayer funds are “sectarian” schools. Those schools are expressly prohibited from receiving taxpayer funds from the tuition assistance program. The reason is because Maine determined that sectarian schools are “associated with a particular faith or belief system” and “promotes the faith or belief system…and/or presents the material taught through the lens of this faith.”

Once the Carson and the Nelson families were denied tuition assistance to send their children to two sectarian schools they chose, they filed a lawsuit in the Federal District Court for the District of Maine. They claimed that their denial to receive tuition assistance for use at a sectarian school violated their rights under the First Amendment. 

They lost at the trial court. An appeal was subsequently filed in the United States Court of Appeals for the First Circuit where the Court ruled against the plaintiffs again. An appeal was subsequently made to the United States Supreme Court, which ruled in a 6 – 3 decision that Maine’s denial of funds from the tuition assistance program for the Carson and Nelson families was unconstitutional because it violated the First Amendment’s Free Exercise Clause. LEARN MORE

Policy Analysis

The decision by the Supreme Court represents another low point in the Court’s recent decisions concerning the scope and limits of the First Amendment’s religion clauses. What the Court is allowing here is opening up the door for state taxpayer funds to be used for religious instruction. While the majority does not see it, or refuses to see it, the majority opinion is in clear contradiction to the Free Establishment clause’s dictates that there be a separation of church and state.

Justice Stephen Breyer’s dissenting opinion encapsulates brilliantly what the majority opinion ignores in this case. Giving a quick history lesson of the Court’s prior decisions on the Establishment Clause, Justice Breyer shows how the Court definitively stated that states cannot use “its public school system to aid any or all religious faiths” and how a state may “[not] adopt programs or practices in its public schools…which ‘aid or oppose’ any religion.”

 This is explicitly clear and has been followed in subsequent Supreme Court decisions for decades – no weekly religious teachings in public schools, no prayers in public schools, no Bible readings in public schools, no religiously tailored curriculum in public schools, no prayers during public school graduations and no prayers during public school football games.

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In Carson v. Makin, the conservative justices take another brick from the “wall” of separation between church and state.

Photo taken from: Balls and Strikes / Getty

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The majority opinion’s mistake is when they reasoned that this is a public benefit available to all Maine residents. The court’s reasoning relied on the Supreme Court’s 2017 decision from the case Trinity Lutheran Church of Columbia, Inc.v. Comer. That decision ruled that the church from the case could not be prohibited from state taxpayer dollars on account of their religious status because the funds were for a public benefit – the resurfacing of the church playground with recycled rubber materials. 



The monies could be classified as being used for public safety and not for any type of religious instruction. But the difference from that case and the case from Maine is that state taxpayer funds would now be used for direct religious instruction. Justice Breyer notes this distinction and illustrates the “status-use” distinction that is at the heart of this case. 

Justice Breyer points out that it is not the status or classification of the group that is the point but how state taxpayer funds will be used – and in this case it will now be used to directly pay for religious instruction. This isn’t about improving playgrounds or buildings anymore. The tuition monies in Maine would now be used to directly pay for religious materials and to pay the salaries of teachers who advocate for a particular religious viewpoint.

This is a clear violation of the Establishment Clause’s prohibition against religion in public schools and Justice Breyer correctly points out why the majority opinion is clearly wrong and against prior Supreme Court precedent. LEARN MORELEARN MORE

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact

Engagement Resources​

Click or tap on resource URL to visit links where available 


Freedom From Religion Foundation – non – profit group’s statement on the Carson v. Makin case.

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Americans United For Separation of Church And State – statement from non – profit group on the Carson v. Makin case.

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