In 1853, the public school in Ellsworth, Maine, expelled 16 Catholic students for refusing—at the direction of their pastor, Father John Bapst—to recite from the Protestant King James Bible. The incident prompted a wave of anti-Catholic mob violence. Arsonists set fire to both of Ellsworth’s Catholic churches, and Father Bapst’s bishop, fearing for his safety, ordered him to leave town. Undeterred, one of the students, Bridget Donahoe, challenged her expulsion on religious-liberty grounds. Her case reached the Maine Supreme Court, which issued a stinging rebuke in a unanimous opinion dripping with anti-Catholic, nativist sentiment. “Large masses of foreign population are among us, weak in the midst of our strength,” Justice Appleton opined. “Mere citizenship is of no avail,” he continued, “unless they imbibe the liberal spirit of our laws and institutions, unless they become citizens in fact as well as in name. In no other way can the process of assimilation be so readily and thoroughly accomplished as through the medium of the public schools, which are alike open to the children of the rich and the poor, of the stranger and the citizen.”
When the U.S. Supreme Court hears oral argument in Carson v. Makin on December 8, it would do well to recall Bridget Donohoe. Remarkably, the State of Maine’s hostility to religious liberty persists. In Carson, the Court will decide whether Maine’s exclusion of faith-based schools from a longstanding tuition-assistance program violates the First Amendment’s Free Exercise Clause. Since 1873, Maine has given school districts without high schools two options for providing for the secondary education of their residents: either contract with a neighboring district or permit residents to spend the public funds allocated for their education at the high school of their choice. Students participating in this program, commonly called “town tuitioning,” may use these funds at any school, public or private, anywhere, with one important exception: they cannot attend a school that the state deems “sectarian.”
For more than a century, Maine permitted students participating in the tuitioning program to attend faith-based schools, and many did. But in 1980, Maine’s attorney general concluded that the First Amendment’s Establishment Clause prohibited the state from permitting residents to use public funds to attend “sectarian” schools. The Maine legislature codified this policy the following year. In 2002, however, the U.S. Supreme Court held in Zelman v. Simmons-Harris that the Establishment Clause does not preclude the government from including faith-based schools in private-school-choice programs. In fact, religious schools were the top choice for over 96 percent of the participants in the program at issue in Zelman—a modest voucher program for disadvantaged children in Cleveland.
Even after Zelman made clear that Maine need not exclude faith-based schools from the tuitioning program, the state continued to do so. Maine does not claim that this desire is motivated by any federal or state constitutional mandate. It cannot, since Zelman made it clear that the Constitution permits states to include faith-based schools in private-school-choice programs, and Maine’s constitution does not include an establishment clause.
Over the years, litigants have repeatedly challenged the exclusion of faith-based schools from Maine’s tuitioning program (and from nearly identical programs in Vermont and New Hampshire). As a young lawyer nearly 25 years ago, I participated in the first such challenge, a case called Bagley v. Town of Raymond. Since then, several Supreme Court decisions, as well as a recent Second Circuit decision invalidating Vermont’s tuitioning program, have cast serious doubt on the constitutionality of excluding religious schools.
Two cases in particular are important. In Trinity Lutheran Church v. Comer (2017), the Supreme Court held that Missouri violated the Free Exercise Clause when it excluded a faith-based preschool from a program that provided recycled tires for playground resurfacing. Writing for the majority, Chief Justice John Roberts concluded that by “expressly discriminat[ing] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,” Missouri’s policy put Trinity Lutheran to an unconstitutional choice: “It may participate in an otherwise available benefit program or remain a religious institution.” And in Espinoza v. Montana Department of Revenue (2020), the Court held that the Montana Supreme Court violated the Free Exercise Clause when it invalidated, on state constitutional grounds, a private-school-choice program because it included faith-based schools. Espinoza made clear that the holding in Trinity Lutheran applies with equal force to private-school-choice programs. Writing for the majority once again, Chief Justice Roberts observed: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
Several months after the decision in Espinoza, the U.S. Court of Appeals for the First Circuit rejected the latest free-exercise challenge to Maine’s tuitioning program in Carson v. Makin. This may seem surprising. After all, if Espinoza held that excluding religious schools from private-school-choice programs violates the Free Exercise Clause, how can Maine’s exclusion of them from its program be constitutional? The most charitable explanation is that the First Circuit took advantage of a confusing loophole in the reasoning of Espinoza and Trinity Lutheran. In both cases, the majority concluded that the challenged policies discriminated against recipients based on their religious “status,” and declined to decide the question of whether a state would have more leeway to discriminate against recipients based on their religious conduct. The First Circuit concluded that there is such a distinction, and that Maine’s exclusion of faith-based schools is an example of the former—that is, a decision motivated by a supposedly legitimate desire to avoid paying for religious instruction, rather than illegitimate discrimination against schools based on their status as religious institutions.
In July, the Supreme Court accepted Carson v. Makin to resolve whether a state can prohibit students participating in a private-school-choice program from attending schools that provide religious instruction.
The answer is no. Discriminating against schools because they teach religion is just as odious to the Constitution as discriminating against them because they are religious. As Justice Gorsuch observed in his concurring opinion in Espinoza, “it is not as if the First Amendment cares. The Constitution . . . protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.” Moreover, in many if not most cases, the “religious status” / “religious conduct” divide is a distinction without a difference, because for many if not most faith-based institutions, “being religious” means “doing religious things.”
This is particularly the case in the context of K-12 education, where the everyday conduct of faith-based schools makes the purported distinction between religious status and religious conduct both unworkable and discriminatory. For example, an amicus brief filed in Carson v. Makin by Notre Dame’s Religious Liberty Initiative on behalf of Catholic, Islamic, and Orthodox Jewish school organizations makes clear that religious instruction is integral to their educational programs. Consider, for example, the Partnership Schools—which operates nine high-achieving urban Catholic schools in Harlem, the South Bronx, and Cleveland. The Partnership insists that its schools must be “Catholic on the inside,” which is to say, that they must pair “academic excellence” with “joyous, productive, faith-filled school cultures” that “weave together faith, values, and character education with” secular instruction. To ask them to disentangle the secular and religious aspects of their curriculum and student formation would be tantamount to asking them to stop being Catholic schools.
Similarly, schools accredited by the Council of Islamic Schools in North America must demonstrate that they “incorporate Islamic values . . . in all subjects.” This is hardly surprising, since the integration of religious and secular curricular content lies at the core of their identity as Islamic schools. Likewise, though the “dual curriculum” model employed in most Orthodox day schools divides the school day between Judaic and general studies, these schools also aspire to achieve curriculum integration to ensure that students synthesize religious and secular knowledge. This integration of faith and reason is a defining characteristic of schools in many other faith traditions as well. As a result, the “status/conduct” distinction is tantamount to an invitation to states to force on religious schools a choice that the Supreme Court has called unconstitutional: either participate in school-choice programs or continue to be religious schools.
For this reason, the implications of Carson v. Makin extend far beyond Maine. For decades, school choice has been gaining momentum across the United States. Currently, 31 states have at least one publicly funded private-school-choice program, enabling more than 600,000 children to attend a private school. In 2021 alone, 21 states have enacted, expanded, or improved private-school-choice programs, and three states joined the private-school-choice roster (Kentucky, Missouri, and West Virginia). A Supreme Court decision clarifying that the Free Exercise Clause always prohibits the exclusion of religious schools from choice programs would clear away a major impediment to building on this momentum: state constitutional provisions prohibiting the funding of faith-based schools (often called “Blaine Amendments”). These provisions, which have an uncontested and well-documented anti-Catholic pedigree, have not proved as fatal to parental choice as some commentators predicted following Zelman, but they continue to haunt the parental choice movement. If the Court endorsed the status/conduct distinction, it would invite states to justify discriminatory funding policies on Blaine Amendment grounds, depriving many thousands of families of access to the high-quality faith-based schools that have served them well for so long.
In important ways, Bridget Donahoe’s decision to fight for her religious liberty in Ellsworth, Maine, is connected to the question before the Supreme Court in Carson v. Makin. In the decades following Donahoe’s courageous stand, faith-based schools began to demand public funding on equality grounds, arguing both that public schools were hostile to minority religions and that parents should have the right to select the schools that best serve their children’s academic and moral development. For well over a century, these demands either fell on deaf ears or were actively rebuked by both legislatures and courts. In response, faith-based schools set about the important task of educating millions of American students without any public assistance. The available evidence suggests that they have excelled at this job, providing a lifeline out of poverty for generation after generation of disadvantaged and minority children. Over the past few decades, as the Supreme Court has emphasized that the Constitution demands neutrality to religious institutions rather than hostility, American education policy gradually has begun to embrace parental choice, opening the doors to these schools to families of modest means.
Maine’s exclusion of religious schools from its tuitioning program stands out as a relic of a less welcoming, less just, time for people of faith—an unfortunate example that recalls the struggles of Donahoe and Father Bapst nearly two centuries ago. Carson v. Makin offers the Court the chance both to correct Maine’s error and to reaffirm that the Constitution does not permit discrimination against faith-based schools. Doing so will pave the way for education policies that embrace pluralism and enlist faith-based schools in the important work of educating our children.
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