Carson v. Makin and Public Money for Religious Schools

Maine is a big state with a small population spread across hundreds of towns, and many of those towns are too small to run a high school of their own. For well over a century, Maine's answer has been an arrangement called town tuitioning. If your town doesn't operate a public secondary school and doesn't contract with one, the town pays tuition for you to attend a school elsewhere, public or private, in Maine or sometimes out of state. Some of the private schools families chose were old academies that had served rural Maine since the 1800s. For most of the program's history, religious schools were eligible too. Then, in 1981, following an opinion from the state's attorney general, Maine limited the program to "nonsectarian" schools. Forty-one years later, two families who wanted to send their children to Christian schools in Bangor and Waterville turned that limit into a Supreme Court case, and the decision changed the rules for every state that funds private education.

In short: In Carson v. Makin, decided June 21, 2022, the Supreme Court ruled six to three that once Maine chose to pay for private schooling, it could not exclude religious schools. The ruling built on two earlier cases and makes it hard for states to fund private options while keeping religious ones out. A 2025 tie vote left open whether a state can charter a religious public school.

A tuition program built for the map

Town tuitioning makes more sense once you picture where it operates. Large parts of Maine are forest, lake and coastline with small towns many miles apart. Building and staffing a high school requires enough students to fill classes in chemistry, calculus and a foreign language. Many towns never had that. So instead of busing teenagers an hour each way to a regional school the town didn't control, Maine let towns pay tuition wherever families chose, subject to approval of the school.

The result is one of the oldest forms of school choice in the country, and it was not designed by choice advocates. It was designed by geography. Some of the private academies that took tuition students had been founded in the nineteenth century as the local high school and functioned that way for generations, with town students making up most of their enrollment. For families in those towns, the "private" school was simply where everyone went.

That history matters for the legal argument. Maine told the Court that tuitioning was meant to provide the equivalent of a free public education to children whose towns didn't have one, and that a public education in Maine is secular. The justices in the majority looked at the same facts and saw something else: a state program that paid private schools, many of which were not required to follow Maine's curriculum, and excluded only one category of private school, the religious ones. Which picture you see decides the case.

It is also worth being exact about the scale. Town tuitioning reaches a relatively small share of Maine's students, concentrated in rural areas. The legal principle it produced reaches every state.

Three steps to Carson

The Court did not get to Carson in one leap. It took three cases in five years.

Trinity Lutheran Church v. Comer (2017). Missouri ran a program that paid to resurface playgrounds with recycled tires. A church preschool applied, scored well, and was turned down because the state constitution barred aid to churches. The Supreme Court held that denying a generally available public benefit solely because the applicant is a church violated the Free Exercise Clause. The case seemed narrow, about rubber playground surfaces, and a footnote said so.

Espinoza v. Montana Department of Revenue (2020). Montana created a tax-credit scholarship program for private schools. The Montana Supreme Court struck down the entire program because the state constitution barred aid to religious schools. The U.S. Supreme Court reversed, holding that a state cannot exclude schools from a private-school aid program because of their religious status.

Carson v. Makin (2022). Maine argued its case was different. It wasn't excluding schools because they were religious, the state said. It was excluding them because they would use public money for religious instruction, a distinction between a school's religious status and its religious use of funds. Maine also argued that town tuitioning was meant to provide the rough equivalent of a public education, which is secular by definition.

Chief Justice John Roberts, writing for the majority, rejected both arguments. The Free Exercise Clause, he wrote, does not allow a state to exclude otherwise eligible schools from a public benefit because of their religious exercise, whether framed as status or as use. And because Maine allowed tuition at private schools that didn't have to follow the public curriculum, the state could not claim the program was simply a substitute for public school.

The dissents

Justice Stephen Breyer wrote the main dissent, joined by Justice Elena Kagan and in part by Justice Sonia Sotomayor, who also wrote separately.

Breyer's argument started from the text of the First Amendment, which contains two religion clauses, not one. The Free Exercise Clause protects religious practice. The Establishment Clause bars government from establishing religion. Between them, he wrote, there has always been some room, "play in the joints" in the phrase the Court had used before, where a state may choose not to fund religious activity even when it is not constitutionally required to stay away. Maine's choice not to pay for religious instruction fell in that space. The majority, in his view, collapsed the space and turned a permission into an obligation.

Sotomayor's separate dissent was sharper. She argued that the Court was leading the country to a place where the separation of church and state becomes a constitutional violation, and she warned about how quickly the doctrine had moved since Trinity Lutheran.

Both sides of this argument have a real constitutional tradition behind them. The majority's view is that singling out religious people and institutions for exclusion from public programs is itself a form of discrimination, an argument with deep roots in religious-liberty law. The dissent's view is that taxpayers should not be compelled to fund religious teaching, an argument that goes back to James Madison's opposition to a Virginia tax for Christian teachers in the 1780s.

What happened in Maine afterward

The two schools at the center of the case, Bangor Christian Schools and Temple Academy, did not end up joining the tuition program after the ruling. In the same period, Maine's legislature had amended the state's human rights law to apply its anti-discrimination rules to private schools that accept public money. Both schools had policies, rooted in their religious beliefs, that conflicted with those rules, including on sexual orientation and gender identity. Officials at the schools said they would not participate under those conditions.

Litigation over that next question, whether a state can apply anti-discrimination rules to religious schools it is now required to include, has continued. It is the logical next fight after Carson. If a state must fund religious schools on equal terms, can it require them to follow the same civil rights rules as every other school receiving public money? Or does applying those rules burden religious exercise? Courts have not given a final answer, and readers should watch the Court Watch page for decisions as they arrive.

For readers trying to keep track, the arc of these cases can be summed up in one line: the Court has moved from asking whether states may fund religious schools to asking whether they may decline to.

Oklahoma and the religious charter school

Carson concerned private schools. The next question was whether a public charter school could be religious.

In 2023 Oklahoma's Statewide Virtual Charter School Board approved an application from the Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa to open St. Isidore of Seville Catholic Virtual School, an online school that would teach Catholic doctrine as part of its curriculum, funded with public charter school money. It would have been the first religious charter school in the country.

Oklahoma's Republican attorney general, Gentner Drummond, sued to stop it, arguing that charter schools are public schools and that the state constitution and the federal Establishment Clause forbid a state-sponsored religious school. The Oklahoma Supreme Court agreed in 2024. The charter board and the school appealed.

When the Supreme Court decided the case in May 2025, the outcome was a single sentence: the judgment was affirmed by an equally divided Court. Justice Amy Coney Barrett did not participate. The vote was four to four, which means the Oklahoma ruling stands, St. Isidore cannot open as a charter school, and the decision sets no national precedent. The underlying question, whether a charter school is a state actor bound by the Establishment Clause or a private organization doing business with the state, remains open. Another case from another state could bring it back with all nine justices sitting.

What a state can still decide

After Carson, people sometimes describe the law as if states must now pay for religious schools. That's not quite right, and the difference is where public policy still has room to move.

1. A state is not required to fund private schools at all. The rule in Carson is about equal treatment inside a program the state chooses to create. A state that funds only public schools, as most states historically have, is not affected. The Court said so directly.
2. A state can set neutral conditions. Requirements that apply to every participating school, such as testing, financial reporting, health and safety rules, may still be imposed. Whether particular conditions, such as anti-discrimination rules that conflict with a school's religious teaching, can be applied to religious schools is the open question described above.
3. A state's own constitution still matters, within limits. Many states have provisions, often called Blaine amendments after a nineteenth-century proposal with an anti-Catholic history, that bar aid to religious schools. After Espinoza and Carson, those provisions cannot be used to exclude religious schools from a program that funds other private schools. They may still shape whether such a program can exist in the first place, depending on how each state's courts read them.
4. Public schools remain public. Nothing in Carson requires public schools to teach religion or allows them to. The Oklahoma case asked whether a charter school could be the exception, and no majority of the Court has yet answered it.

So the decisions left to voters are real, and they come before any lawsuit: whether to create a program that sends public money to private schools, how broad to make it, and what conditions to attach. Once a state makes the first choice, Carson governs much of the rest.

The stakes, stated plainly

Here is the argument for why progressives should care, and it is not hostility to religion.

Religious schools are an old and important part of American education. Catholic schools in particular educated generations of immigrant and working-class children, and many still serve poor neighborhoods where they are beloved. Religious parents who want their children taught within their faith are exercising a freedom that deserves respect. Nothing in a progressive vision of education requires treating them as suspect.

The concern is structural. After Carson, any state program that pays for private education must include religious schools on equal terms. That means the expansion of universal voucher and education account programs described elsewhere on this site is also an expansion of public funding for religious instruction, by constitutional command. A legislator who votes for a universal account program is no longer choosing whether to fund religious schools; that choice has been made for her. And because many religious schools have admissions and employment policies based on their faith, public money will increasingly flow to schools that can turn away some children whose families pay the taxes behind it.

The honest conservative reply is that this is what equal treatment looks like, and that secular private schools also have admissions policies. The honest progressive answer is that a state can respect religious liberty by leaving religious schools free to teach as they wish, while still deciding to spend public money on public schools open to every child. Carson took that option off the table for states that fund any private choice. It did not require states to fund private choice at all. That is the lever left to voters and legislators.

What you can do

The constitutional questions are in the hands of judges. Whether your state funds private schooling in the first place is not.

• Follow the Supreme Court's opinions and its emergency docket, along with Senate votes on judges, on the Court Watch page.
• Read ongoing reporting on cases about religion, schools and the courts on the courts topic page.
• Ask your state legislators whether your state is considering a voucher, education account or scholarship tax credit program, and whether they understand that Carson requires it to include religious schools. Find them, with their phone numbers and latest votes, at the representatives lookup.
• If you want to support organizations working on church-state separation or on religious liberty, including groups led by people of faith, look through the organizations directory.