Carson v. Makin

Litigation: Challenging the Maine Town Tuitioning Program, second oldest school choice program in the nation, launched in 1873. Opposed to parents seeking access to religious private schools: Advancement Project, Alliance for Educational Justice, American Atheists, American Civil Liberties Union, American Civil Liberties Union of Maine, American Federation of Teachers, American Humanist Association, Americans United for Separation of Church and State, Anti-Defamation League, Baptist Joint Committee for Religious Liberty, Catholics for Choice, Center for Inquiry, Central Conference of American Rabbis, Education and Constitutional Law Scholars, Council of Administrators of Special Education, Evangelical Lutheran Church in America, Freedom From Religion Foundation, Genders & Sexualities Alliance Network, General Synod of the United Church of Christ, Global Justice Institute, Hindu American Foundation, Interfaith Alliance Foundation, Jewish Social Policy Action Network, Journey for Justice Alliance, Maine School Boards Association, Maine School Management Association, Maine School Superintendents Association, Maine Service Employees Association, Men of Reform Judaism, Methodist Federation for Social Action, Metropolitan Community Churches, Maine Education Association, National Association of Elementary School Principals, National Association of Secondary School Principals, National Council of Churches of Christ in the USA, National Council of Jewish Women, National Education Association, National School Boards Association, People For the American Way, Public Funds Public Schools, Reconstructionist Rabbinical Association, Sanford Federation of Teachers-AFT Local 3711, School Superintendents Association, Service Employees International Union, Several states (Virginia, California, Delaware, Massachusetts, Minnesota, New Mexico, New York, Oregon, Washington, and the District of Columbia), State of Vermont, Texas Impact, The Sikh Coalition, Union for Reform Judaism, Women of Reform Judaism. In support of parents: Advancing American Freedom, Agudas Harabbonim of the United States and Canada, Agudath Israel of America, AMERICAN ASSOCIATION OF CHRISTIAN SCHOOLS, American Center for Law and Justice, American Federation for Children, Americans for Prosperity Foundation, ANGLICAN CHURCH IN NORTH AMERICA, ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL, Atlantic Legal Foundation, Becket Fund for Religious Liberty, Buckeye Institute, Cato Institute, CHRISTIAN LEGAL SOCIETY, CHURCH OF GOD IN CHRIST, Church of Jesus Christ of Latter-day Saints, Claremont Institute’s Center for Constitutional Jurisprudence, Coalition for Jewish Values, Concerned Women for America, Congressional Prayer Caucus Foundation, COUNCIL FOR AMERICAN PRIVATE EDUCATION, COUNCIL FOR CHRISTIAN COLLEGES & UNIVERSITIES, Council of Islamic Schools in North America, Defense of Freedom Institute for Policy Studies, EdChoice, ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION, EVANGELICAL COUNCIL FOR FINANCIAL ACCOUNTABILITY, Family Foundation, Foundation for Moral Law, Freedom X, Georgia GOAL Scholarship Program, Hillsdale College, Illinois Family Institute, Independent Women’s Forum, Independent Women’s Law Center, Innovative Schools, Institute for Faith and Family, International Conference of Evangelical Chaplain Endorsers, ISLAM AND RELIGIOUS FREEDOM ACTION TEAM, Jewish Coalition of Religious Liberty, Liberty Justice Center, LUTHERAN CHURCH—MISSOURI SYNOD, Maine Policy Institute, NATIONAL ASSOCIATION OF EVANGELICALS, National Council of Young Israel, National Jewish Commission on Law and Public Affairs, National Legal Foundation, Orthodox Jewish Chamber of Commerce, Pacific Justice Institute, Partnership for Inner-City Education, Partnership Schools, Pioneer Institute, Professor Ashley R. Berner, Professor Charles L. Glenn, Professor Michael W. McConnell, Protect the First Foundation, QUEENS FEDERATION OF CHURCHES, Rabbinical Alliance of America, Rabbinical Council of America, RELIGIOUS FREEDOM INSTITUTE, Several African-American community leaders in Memphis (Rev. Vernon Horner of the Memphis Baptist Ministerial Association, Deborah L. Womack of the Ministers’ Wives Guild, Rev. George Womack of the Faithful Baptist Church, and Rev. Steven J. Joiner, Pastor in Memphis), Several states (Arkansas, Alabama, Arizona, Georgia, Florida, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, and West Virginia), Several US Senators (Mike Lee, Mitch McConnell, John Cornyn, Ron Johnson, Ted Cruz, Tom Cotton, Steve Daines, Thom Tillis, Ben Sasse, Marsha Blackburn, Josh Hawley), Southern Christian Leadership Conference – Memphis Chapter, Stanley M. Herzog Charitable Foundation, Torah Umesorah, Union of Orthodox Jewish Congregations of America, UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, World Faith Foundation, yes. every kid.

Outcomes: On October 21, 2018, multiple families filed a federal civil rights action against Maine for violating their rights under the First and Fourteenth Amendments to the U.S. Constitution, by prohibiting them from choosing religious schools of their choice for their children using the state’s Town Tuitioning voucher funding. The U.S. District Court applied a prior adverse decision, Eulitt v. Maine Department of Education, 386 F.3d 344 (1st Cir. 2004), in ruling against parents on June 26, 2019. Carson v. Makin, 401 F.Supp.3d 207 (D. Me. 2019). The decision was appealed to the U.S. Court of Appeals and on October 29, 2020, the U.S. Court of Appeals for the First Circuit held that Maine has a right to deny funding for a child’s tuition at a school where religion is part of the school instructional day. The Court distinguished this case from Espinoza by opining that Espinoza involved a violation of the Free Exercise Clause, whereas allowing state funds to be used for education at a religious school using funds in part for religious activities and instruction would be a violation of the Establishment Clause. Carson v. Makin, 979 F.3d 21 (1st Cir. 2020). On July 2, 2021, the U.S. Supreme Court accepted appeal of Carson v. Makin on Writ of Certiorari from the U.S. Court of Appeals for the First Circuit. The question presented to the Court was, “Does a state violate the Religion Clauses or Equal Protection Clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or ‘sectarian,’ instruction? On June 21, 2022, the U.S. Supreme Court in Carson v. Makin held that it is a violation of the U.S. Constitution for a state to prohibit choice of a religious private school by a parent using school choice program funding. When a state prohibits a parent from using school choice program funding at a religious school, based on either, a) the status of the school as a religious school (as affirmed in Espinoza), or b) the school’s use of school choice funding from the parent for religious activity or instruction during an instructional day, the state has violated the parent’s First Amendment religious rights

Why it Matters: After the First Circuit Court of Appeals distinguished Carson as a religious use case instead of a religious status case like Espinoza, whether Blaine Amendments were truly dead, legally unenforceable, was uncertain. Securing the Carson victory added an exclamation point to the Espinoza ruling and left no further doubt of Blaine Amendments’ demise.

Effects: Although some still target religious issues when trying to defeat school choice programs, we can say with confidence that Blaine Amendments are no longer effective.

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