In the case Carson v. Makin, 596 U.S (2022), decided June 21, 2022 the Supreme Court of the United States ruled in favor of the petitioners with a conservative 6 to 3 majority that has become very frequent in the recent years. In this text I will focus on the dissenting opinion written by Justice Stephen Breyer, with whom Justice Elena Kagan joined and Justice Sonia Sotomayor joined with the exception of Part 1-B in the dissenting opinion. Briefly put, this case is, on a constitutional level, about the two Religion Clauses in the First Amendment – the Establishment Clause and the Free Exercise Clause.
The state of Maine has a tuition funding program that provides funding for students to attend a private school if there is no public high school available in their area. These areas, called school administrative units (SAUs), can meet their requirements by contracting with a high school or by paying the tuition for one, where the student has been accepted. In both instances, the high school in question must be either a public school or an approved private school. There are two criteria for a school to meet in order to be considered an approved school. It must meet the state’s obligatory attendance requirements and be “nonsectarian in accordance with the First Amendment”. The petitioners in this case wanted to receive funding for schools that did not meet the nonsectarian requirement, hence raising the question of whether state law that prohibits students from using the aid program for a sectarian school violates the Religion Clauses or the Equal Protection Clause of the Constitution.
I will not go into detail regarding the majority opinion, but its shortcomings will become apparent in explaining the minority opinion. Justice Breyer begins and concludes his opinion with the historically established and accepted understanding of the interplay between the two Religion Clauses of the First Amendment. He emphasizes the importance of allowing states the flexibility “to further antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion” (slip op., at 1), within the scope of which Maine’s nonsectarian condition falls.
The minority, in the form of Justice Breyer’s opinion, takes a historical perspective as the basis for its arguments, which is a bit of a departure from what we usually see in terms of the conservative-liberal division. More often than not the historical reasoning is the conservative side’s approach to defending their stance. However, Justice Breyer bases his opinion on the long-standing principle of separation of church and state, and the State’s consequent neutrality towards religion. This objective of constitutional neutrality can, according to Justice Breyer, be derived and accomplished through the ultimately complementary values represented by the two Religion Clauses of the First Amendment. The crucial shift that has taken place as a result of this ruling is one where states are no longer given the right to case-by-case consideration in interpreting and balancing the First Amendment’s Religion Clauses. Before, a state could choose to fund religious schools, whereas now it must do so. Taking away the possibility to evaluate each case on its facts shows how the majority completely disregarded the Establishment Clause and gave weight almost exclusively to the Free Exercise Clause.
Justice Breyer combats the majority’s key case references, Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S (2017) and Espinoza v. Montana Department of Revenue, 591 U.S (2020) by pointing out the fundamental difference between religious status and religious use. There is an underlying distinction between these two cases and what type of role religion plays in them. In Trinity and Espinoza, the relevance of religion was only in the status of the schools, where the funding concerned the building of cushioned playgrounds, which really is more a matter of safety for all kids no matter what type of school they attend. The way in which Carson differs, is that the schools had religion embedded in every aspect of their operations. Breyer argues that because in Carson, the schools would use the funds to promote and teach religious beliefs, it is acceptable to exclude them from funding.
I found one of the crucial and compelling points in Breyer’s dissenting opinion to be that the concept of religious use, in Carson, goes to the extent that there is no separation between academic and religious instruction. He emphasizes how in its past decisions the court has never claimed that the Free Exercise Clause prohibits States from denying funds that would go towards religious use. States should be allowed to exclude schools that provide a religious education that is in no way a comparable alternative to a neutral civic-minded public education from its funding programs. This nonsectarian requirement, Breyer states, is constitutional because it supports the idea behind the Religion Clauses, which is to avoid religious strife.
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