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Jenny Mahoney:  Welcome to The Federalist Society's Courthouse Steps Decision webinar call. Today, July 6, we discuss Carson v. Makin. My name is Jenny Mahoney, and I'm Associate Director of Practice Groups with The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

Today, we are fortunate to have with us Arif Panju. Arif serves as a managing attorney with the Institute for Justice. He leads IJ's Texas office and litigates cases involving free speech, copyrights, economic liberty, and educational choice. Arif was co-counsel in the case of Carson v. Makin in the U.S. Supreme Court.

 

Throughout the panel, if you have any questions, please submit them using the Q&A function at the bottom of the screen so that our speaker will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today, Arif. The floor is yours.

 

Arif Panju:  Thank you, Jenny, and it's an honor to be with The Federalist Society once more. I'll just take a moment of personal privilege just to thank the FedSoc. It was profoundly important to me in law school at SMU Law, and it continues to be profoundly important today, and I'm looking forward to discussing Carson v. Makin.

 

Before I jump into the opinion, I think it makes sense to kind of set the stage a bit because, over the past 30 years, private school choice programs have expanded across this country. And during those three decades, opponents of school choice have attacked educational choice programs in two ways, and I think laying out both of those methods of challenging educational choice programs helps frame what was at issue in Carson v. Makin.

 

First, in the early 1990s, opponents of educational choice -- and these are programs that allow parents to select from an array of private educational options, including religious schools, an educational option that works best for their child. And opponents of these programs argued that such programs violated the Establishment Clause of the United States Constitution. The U.S. Supreme Court put an end to that in 2002 in a case called Zelman v. Simmons-Harris and held, so long as a program is neutral as to religion and operates on private choice—meaning parents have a range of options to pick from and it's their decision—it's perfectly fine to have a school choice program. It does not offend the Establishment Clause.

 

With that arrow gone, opponents turn to challenging private school choice programs on the grounds that they violated state law that prevented the funding of religious schools or religious institutions, and also under state constitutional provisions, often called Blaine amendments, which prohibited the same. The Court addressed this type of challenge directly in Espinoza v. Montana Department of Revenue, which I'll get into because it's discussed in Carson, and Carson relies heavily on Espinoza and its principles. The Court rejected gerrymandering along religious lines in discriminating against educational options just because they're religious as a violation of the Free Exercise Clause.

 

Carson v. Makin was filed shortly after Espinoza in 2018 and, together with Espinoza, has extinguished this second line of attack against school choice. At the end of Carson v. Makin, I'll discuss some of the broad implications of what that means across the country and for school choice specifically.

 

So in Carson v. Makin, there's a law at issue, and it's a law that's been on the books for a very long time -- actually, a program that's been on the books for a very long time—a tuitioning program. And the State of Maine, which is the most rural state in the Union, allows parents, if they live in a school district which is -- the opinion refers to these as school administrative unions, or SAUs. But if they live in a school district that does not operate its own public school, the tuitioning program allows parents to apply and get the tuition benefit and send their child to a school of their choice—public or private—in the United States or out of the United States, within Maine or anywhere in the other 49 states. It doesn't matter.

 

You can pick the school of your choice as long as it's approved, so long as it's not a religious school. And again, this program's been on the books for over a century. And before 1980, families in Maine were perfectly able to pick a religious school if that's what they wanted. After 1980, after an AG opinion was written—and this was later codified shortly thereafter—the Attorney General of Maine at the time invoked the Establishment Clause as the basis for no longer allowing parents to pick religious schools.

 

And despite Zelman coming down in 2002, Maine continued enforcing its sectarian exclusion to prevent families, who otherwise qualified for the program, from picking a school of their choice that was religious. And this religious exclusion—and I'll refer to it as the religious exclusion—provided that you can't pick a school that is sectarian. That's just a no-go in Maine. And the provision had been challenged a couple times before Carson, and those challenges fell short, but not after Carson.

 

And so, it's important to note that we were in the trial court in Carson. We knew that we were going to hit a wall, which was the prior case that had rejected this exact same argument—that excluding parents from picking a religious educational option violates the Free Exercise Clause. And so, we report out in the trial court, and while in the First Circuit, in Carson, a case challenging Montana's exclusion of religious educational options from its school choice program—there, a tax credit scholarship—that ruling, Espinoza v. Montana, came down after we argued the case. And there, SCOTUS held that the religious exclusion in Montana -- and there, it was enshrined in its Blaine amendment that the Montana Supreme Court was enforcing and saying, under a state constitution, you simply can't pick a religious school. The U.S. Supreme Court ruled that that Blaine amendment violated free exercise because it discriminated against religious status and just singled out religious educational options and discriminated against them.

 

When that decision came down, Espinoza v. Montana, Carson had been argued in the First Circuit and was waiting for a decision. So what did the First Circuit do? Well, we sent 28 J letters, and then Maine changed its tune, saying, "We don't discriminate against religion because it's religious; we discriminate against options that are religious if they use religion."

 

And so, the First Circuit seized on the distinction—so-called distinction—between religious status and religious use and, in addition to that, also reasoned that tuition benefit is not like other school choice programs; it's just the "rough equivalent" of a public school, and it's simply available to people that don't have access in their own town to a public school.

 

Seizing on these two distinctions, the First Circuit—with, I think, Barron, Selya, and Justice Souter sitting by designation—applied rational basis review and upheld the religious exclusion under Maine statute. Now, again, Maine had argued in the First Circuit that if a school is religious, it is out, and after Espinoza changed its tune, the First Circuit also seized on the status/use distinction primarily and also redefining the benefit as the rough equivalent of a public education.

 

And so, the First Circuit upholds the exclusion, and the U.S. Supreme Court grants cert in Carson and, on June 21 of this year, issues its decision and reverses. Carson is a 6-3 decision, with the majority opinion written by the Chief. And Chief Justice Roberts -- it's interesting because the Chief authored both status discrimination cases that preceded Carson, the first being Trinity Lutheran v. Comer and the next one, which was the case I just discussed, Espinoza v. Montana Department of Revenue.

 

And Supreme Court reverses the First Circuit and holds that the religious exclusion baked into the tuitioning program that prevented families like the Carsons and the Nelsons, families that Institute for Justice represented along with First Liberty Institute -- that they have a right to pick a school of their choice. And by preventing them from picking a religious school, their Free Exercise rights were violated, and the Court reversed.

 

And so, I'll march through the majority opinion because one thing that I take away from it is, it's an understated opinion by the Chief, and I think it really distills the fact that this area of the law is quite clear. And so, the majority opinion begins by laying out some principles, and I'll start there. The first is that the Free Exercise Clause of the First Amendment -- the Free Exercise Clause of the First Amendment protects against "indirect coercion or penalties on the free exercise of religion, not just outright prohibitions." And there, it's relying on Lyng v. Northwest Indian Cemetery Protective Association, a 1988 case.

 

The next principle it lays out is that a state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits, and that's Sherbert v. Verner in 1963. For instance, "A state can't withhold unemployment benefits," the Court explains, "on the ground that an individual lost her job for refusing to abandon the dictates of her faith."

 

So as they're laying out these principles, the Court then turns to explain that it has recently applied these principles in the context of two state efforts to withhold otherwise-available public benefits from a religious organization. The first is Trinity Lutheran, and the next one is Espinoza. The Court explains that, like the State of Missouri in Trinity Lutheran and like the State of Montana in Espinoza, the State of Maine is singling out individuals from a public benefit program because of their religious exercise. And then it proceeds to march through those two cases.

 

In Trinity Lutheran—and the entire case is Trinity Lutheran Church of Columbia v. Comer—the State of Missouri offered grants to pay for playground resurfacing. A lot of older playgrounds, if you remember, are pavement, and they're hard, and some of the newer playgrounds that our little humans get to play on are not; they often have a very padded-type surface made with recycled tires. That's the type of program that was at issue in Trinity Lutheran, and the State of Missouri offered grants to pay for playground resurfacing, but it maintained a policy of denying the grants to applicants that were either owned or controlled by a religious entity or a church.

 

And the majority opinion in that case deemed it "unremarkable" in light of the Court's prior decisions to conclude that the Free Exercise Clause did not permit Missouri to expressly discriminate against otherwise-eligible recipients by disqualifying them. The Court held that such discrimination was odious—its word—to the Constitution.

 

Two terms ago, the Court decided Espinoza v. Montana, and in Carson, the Chief, after going into Trinity Lutheran and showing how the principles that were laid out earlier applied in that case, marches through Espinoza v. Montana to explain why it reached the conclusion it did in that case.

 

So in Espinoza v. Montana, the Court reached the same conclusion as it did in Trinity Lutheran, and there, the program involved a school choice program that provided tax credit scholarships to families in Montana to help offset the cost of private education. Ms. Espinoza wanted her children to go to religious schools and was met with hostility. The Maine Supreme Court held that the program at issue in Espinoza, to the extent it included religious schools, violated the state constitution's Blaine amendment.

 

Blaine amendments are constitutional provisions that bar government aid to any religious schools. And they're peppered throughout several state constitutions around the country, and as I mentioned earlier, they form the second line of attack, really, against school choice programs, both at legislatures and in the courts. And in Espinoza, the Court granted cert and reversed and held that the Free Exercise Clause forbade the State of Montana from denying Espinoza and any other parents like her from picking a religious school because it was a violation of her Free Exercise rights to do so.

 

So, back to Carson. So, as you can see, the Chief just lays out some principles, marches through Trinity Lutheran to illustrate how those principles were applied in that case, goes through Espinoza, explains how the principles applied in that case. In Espinoza, like Carson v. Makin, both involve educational choice programs. Both involve a benefit that the challengers were eligible for but that they could not use because what they were trying to do is educate their children at religious schools because the parents believed that that was the best educational option for their children. And the state had given parents the decision-making power to say, "This is where we want to go with our students under this program."

 

And so, after discussing Trinity Lutheran and Espinoza, the majority in Carson then declares that the "unremarkable" principles applied in both of those cases suffice to resolve Carson. "Maine offers its citizens a benefit," the Chief explains, "tuition assistance payments, but conditions the availability of those benefits on religious grounds." Now, the Court explains that, while the wording of the Maine statute at issue and the wording of the Maine constitution's Blaine amendment are different—and they are different—the court concludes that their effect is the same, because it is: to disqualify some private schools—that's it—and from funding that folks would be generally available to use and disqualifies them solely because they are religious.

 

Such laws, the Court declared, must satisfy strict scrutiny. Recall that the First Circuit had applied rational basis review to uphold Maine's exclusion after Espinoza came down. So the Court, having decided in Carson now that strict scrutiny applies, and having laid out the principles for how it decided about Trinity Lutheran and Espinoza, and then applying those principles and explaining how they applied in those two cases, the Court turns to addressing the First Circuit opinion. And, in particular, the two ways that the First Circuit in Maine, after Espinoza came down, attempted to distinguish Espinoza and finds that both fall short.

 

And the Court opens up this part of the analysis by reiterating what it concluded in Zelman v. Simmons-Harris in 2002, that a neutral benefit program in which public funds floated religious organizations through—and this is key—the independent choices of the private benefit recipients does not offend the Establishment Clause. That's been put to bed, and Maine's decision to continue invoking anti-establishment concerns, not only in 1980, before Zelman when it first decided to prevent parents from picking religious schools, but even after Zelman came down, its decision to continue excluding religious educational options from its program after Zelman "promotes stricter separation of church and state" than is required under the Constitution.

 

And as a result, since they decided to go further than what's required, such anti-establishment interests cannot qualify as compelling under strict scrutiny, especially in the face of the infringement of Free Exercise. The Court also, in this part of the opinion, addresses one of the dissents, and I'll touch upon them at the end—Justice Breyer's, but also Sotomayor. And Breyer was really stressing the importance of religious neutrality in his dissent, but here, the majority explains that there's nothing neutral about Maine's sectarian exclusion. It is discrimination against religion on its face. It's not neutral, and its pattern of continuing to enforce the exclusion, despite the Supreme Court coming down with Zelman v. Simmons-Harris in 2002, continued to enforce it after Trinity Lutheran came down in '17, I think, and after Espinoza with its pivot that it's not discriminating against religious schools because they're religious, but only because they do religious things, the status/use distinction.

 

The fact that they want to continue invoking their anti-establishment concerns doesn't justify a compelling governmental interest. It's discrimination here, and there's nothing neutral about that. So the majority opinion here in Carson kind of starts addressing the dissents. And there are two ways that the First Circuit attempted to distinguish the Court's precedent: by both the status/use distinction that I mentioned earlier but also by recharacterizing the nature of the benefit—the tuition assistance program.

 

And so, recharacterizing the benefit is really the first way that the Court addresses -- the first distinction that the Court addresses. I recall the three-judge panel on the First Circuit first argued that, "Hey, this is a reason that this is not a school choice program. It's rather a benefit that provides the 'rough equivalent' of a public education." You see this in Sotomayor's dissent. The benefit is public education.

 

And so, that's one line of reasoning that's rejected by the Supreme Court's majority opinion in Carson. The second one is defining the nature of the religious exclusion as one based on religious use and not status. So the Court first jumps into the first one, which is recasting the benefit as a rough equivalent of a public education. And the Chief points out that, first, just looking at the statute, which says that families can use a tuitioning law at any public or private school, the statute says no such thing—that this is simply a rough equivalent of a public education. It is a benefit that provides tuition at a public school or private school, and that can be in Maine or out of Maine.

 

And so, the statute itself doesn't support the distinction just right out of the gate. Next, the Chief turns to the many, many differences between public schools and public education and private schools and that, according to Maine, the only difference is religion. Maine is saying it's a rough equivalent because the only difference, really, is that we want everything to be secular. And so, that's why we're excluding religious educational options because these private schools that parents pick are really just a rough equivalent of a public school, and so, we can exclude religion.

 

And so, the Chief marches through the numerous ways that private schools are not like public schools. First, they don't have to accept all students. Second, they charge tuition and, as the record revealed, some of the schools that parents pick charge a lot more tuition than the tuition benefit; some charge a little bit less, but many charge more, especially some of the high-end, really expensive prep schools that charge north of $50,000 a year. And Maine families that qualified for the program could and did select such schools, and that's not a rough equivalent. And no one would be confused that going to a $50,000 private school in New Hampshire is the rough equivalent of a Maine public school.

 

So, more differences. The curriculum needs didn't have to resemble a public school's. The two schools that parents, the Carsons and the Nelsons, wanted to send their children to were accredited by a New England organization that accredited private schools. And Maine's statute made clear that if the school you want is accredited by this organization, your curriculum doesn't have to resemble anything that a Maine public school has to resemble. There's no annual state testing, schools that participated in the program were not required to hire state-certified teachers, and parents were free to pick single-sex schools. Those were permitted as well.

 

And so, private schools are not the "rough equivalent" of a public school education. After going through the many ways that they're different, the Chief concludes that the only equivalence between these private educational options and public education in Maine, that Maine is striving for here under the program, appears to be just based on religion—just drawing a line at religion. And so, the Court doesn't find that distinction persuasive; rather, it simply amplifies the reality of what's going on in this case, and that is that by recasting the benefit, what Maine's really doing and what the First Circuit did is really just recast the formulation for why this exclusion violates the Free Exercise Clause. It's because it targets religion.

 

You can explain it in different ways, but it all ends at the exact same point. Picking students that want to pick a private school that the government thinks is fine, that's okay, but if they pick a religious school, that's not okay, and that's really the only line that existed, regardless of the fact that Maine and the First Circuit attempted to recast the tuition benefit as a substitute for public education.

 

So, having dispatched that, the majority opinion then turns to the second way that Maine and the First Circuit attempted to avoid Espinoza and uphold the religious exclusion under Maine's tuitioning program, and that is the status/use distinction. Now, it's important to note that Espinoza and Trinity Lutheran before it were status cases, as I mentioned earlier, and the Chief wrote the majority opinion in both. And in those cases, the funding restrictions, according to the First Circuit and according to Maine, were simply status-based discrimination, and that's not what's happening here.

 

After Espinoza came out, Maine took the position that religious schools could qualify, if they want, once they go through an inquiry by the state of whether they're using the funds for religious education or if they're using the funds to teach topics like math through the lens of religion. Think of hypotheticals involving Noah's Ark to play math and addition exercises. That's what Maine was attempting to cast its exclusion as, as an attempt to just ensure that religion is not used at all with these funds.

 

Now, the Court rejects this outright. First, it starts with Trinity Lutheran and Espinoza and makes clear that it never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. Those were status cases, but nothing in those cases support the idea that use-based discrimination is permissible. The Court then moves to Carson, where the majority illustrates why and says the following—and I think this is important: "Educating young people in their faith are responsibilities that lie at the very core of the mission of a private religious school." And that's directly out of Our Lady of Guadalupe School v. Morrissey-Berru in 2012.

 

And the Court explains that giving effect to such a distinction between religious status and religious use by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about entanglement with religion. And that's what Maine was saying, that these religious schools can participate after it inquires into how religious they are.

 

There was a school that they did this to that ultimately was allowed to participate, Cardigan Mountain School, but only after a four-month inquiry into why there was a chapel, what went on there. And after the State of Maine determined that the values that were taught at that school were universal enough, that it was permissible, and parents could pick that school as an option. That school charged a lot more than tuition benefit, but they could pick it.

 

Maybe that works for Cardigan Mountain, but good luck if you're the Jewish state school, Catholic schools, or Christian schools, or Muslim schools. And that’s where the Court is getting at -- that if you're going to allow the government to inquire into how religious schools are and spend months delving into that, that raises serious concerns about entanglement. You can't do that is where the Court comes down here with the majority opinion.

 

On status and use, the majority opinion in Carson says unequivocally that the distinction lacks a meaningful application, not only in theory but in practice as well. And so, it dispatches those two attempts to distinguish Espinoza and Trinity Lutheran. And then, the majority opinion turns to Locke v. Davey. It doesn't spend much time on Locke v. Davey, but Locke v. Davey is another case that the First Circuit relied on and that Maine invoked to justify excluding religious educational options from its educational choice program, and the Court is not buying it.

 

Maine and the dissents invoked law in support the argument that the state can preclude parents from designating a religious school to receive tuition. And in Locke, the State of Washington had established a scholarship for postsecondary students, and Joshua Davey was excluded from the endeavor that he was pursuing, and that is, he was studying and training to join the ministry.

 

And the Court in Locke said that having this kind of program is fine if you exclude "essentially religious endeavors," such as "training a minister to lead a congregation." And the Court upheld the restriction in Locke v. Davey. But Locke, as the majority in Carson explains, offers no help here to the State of Maine, and it cites the reasons that it had previously cited both in Trinity Lutheran and in Espinoza when it had to deal with Locke there.

 

Locke is confined to preparing for the ministry. Taking theology classes—the majority opinion notes, in that program in the Locke case—was fine. It's just that if you're pursuing the ministry and that's where the endgame was, that restriction was upheld because Locke's reasoning was just that, looking at historical -- it found a historic and substantial Founding Era interest against using public money to support church leaders. But there is no historic and substantial tradition, the majority opinion in Carson found, against aiding private or religious schools, and that's the exact same conclusion reached in Espinoza when it dealt with Locke there.

 

Locke cannot be read beyond its narrow focus on vocational religious degrees, and that's what Carson had to say about Locke, and it didn't spend too much time discussing it. And at the end, the Court reiterates and concludes that Maine's sectarian exclusion violates the Free Exercise Clause. And parents like the Carsons, parents like the Nelsons, just like any other parent that has a school choice program available in their state, can and should be able to pick a religious educational option. And in Carson, the U.S. Supreme Court made clear that it is because their Free Exercise rights allow them to, and preventing them from doing so violates the Free Exercise Clause.

 

So I'll touch on the dissents just briefly before we open up for questions. And after the dissents, I'll talk about impact that I believe we'll see in the wake of Carson v. Makin. So there's two dissents. And before I jump into dissents, I think it's worth noting and reiterating, in part, a couple things. Now, the program in Maine has been on the books since the early 19th century, and for over a century, families could and did choose religious schools. It wasn't until 1980, with an AG opinion that relied on an incorrect interpretation of the Establishment Clause, which was confirmed in 2002 by the U.S. Supreme Court in Zelman, that -- The AG thought you just couldn't pick religious schools.

 

Maine continued enforcing its religious exclusion after Zelman, citing anti-establishment concerns. You fast forward to Trinity Lutheran in 2017, despite SCOTUS holding that you can't withhold a public benefit due to being a religious entity, Maine kept at it. And again, after Espinoza, in the context of the Carson case, Maine changes its tune once more. Why? To keep pressing forward and excluding religious educational options.

 

So having that setting the table for the dissents, I turn first to Breyer's dissent. Now, Breyer argues that -- this is a swan song to the Establishment Clause. He's been writing about this for a long time, including in Zelman v. Simmons-Harris. And Breyer argues that allowing Maine's program to provide families with the option, if they so choose, to pick a public or a private school, including private schools that are religious, will lead to religious strife if they do so and if religious schools can participate equally with public schools. And again, this is about parents picking schools that they want.

 

Now, the religious strife that Breyer is concerned about will not happen, and that's because it did not happen. As the majority opinion explains, since the early 19th century, families chose religious schools. It wasn't until 1980 with the AG opinion -- and again, there was no issues there. It was just that the AG cited the Establishment Clause and his reading of the Establishment Clause, which was later codified.

 

And so, overnight in 1980, there were schools that had to pick between maintaining their religious identity and facing the prospect of having kids just be left with nowhere to go to school or to eschew their religious identity and to maintain the educational option to take care of the students that were enrolled there. There's an amicus brief that discusses the experience of John Baptist High School and goes into that. And hundreds of students were picking religious educational options.

 

And Breyer, what he seizes on is that there's over 100 religious denominations in this country with different belief systems, and Breyer argues that we can justify expelling religion from the program so that these denominations will not fight with each other. And again, that wasn't happening before in Maine, but the fact that so many -- and, frankly, the fact that so many religious denominations exist confirms that we are a pluralistic society.

 

And I point to a really nice amicus brief by Professor Berner out of Johns Hopkins written by, I think, Dominic Draye, fellow FedSoc colleague, that touches upon the pluralistic society we live in and educational options. And, really, the way to preserve it is to ensure that the Constitution is enforced. The government cannot favor religion, but it cannot, as the Chief said, disfavor religion, and that's what the religious exclusion did.

 

And so, Breyer's dissent really focuses on the Establishment Clause, focuses on his view of it, which he's been pronouncing since, and even before, Zelman. But as the Court explains in the majority opinion, Zelman put that issue to rest. When parents have a choice, an independent choice, and can pick from a variety of options, there is no Establishment problem with that.

 

Turning to Justice Sotomayor's dissent. Sotomayor's dissent is shorter, but it hits on three points briefly. It criticizes the Court and says, "You shouldn't have gone down this road starting in Trinity Lutheran." Recall, Trinity Lutheran was a 7-2 decision. The two dissenters were Sotomayor and Ruth Bader Ginsberg. It was a narrow ruling that carried seven justices, but Sotomayor is criticizing it and saying, "The Court shouldn't have gone down this road." Why? Leads to her second point. She's criticizing the Court for failing to apply the play on the joints principle and says that begs the question: What's left of it?

 

And then pivots to her third point, where she follows the First Circuit's characterization of the benefit here and says, "The benefit is public education." And as I discussed earlier, the Chief marched through the many, many reasons why picking a religious school anywhere in the United States or even outside the world or even schools that are single-sex or cost a lot of money or that don't have to accept everyone or that don't need state-certified teachers, those aren't the rough equivalent of a public education; those are private schools. And as Our Lady of Guadalupe says, private schools that are religious in nature do teach through a lens of religion, and that's fine. That doesn't raise any issues here if the parents decide that that's the best option for them and their children.

 

Sotomayor also criticizes the majority and asserts in Carson that Maine must fund "religious education" after Carson and that it was "forced" upon the state. The Chief addresses this and rejects this in a majority opinion and notes that it is Maine that chose to allow some parents to direct the tuition benefit to private schools. They've done so for over a century. It wasn't forced. The state, per the majority opinion, could expand the reach of its public school system. It could increase the availability of transportation, it could increase remote learning, allow flexible attendance policies, but what it cannot do is discriminate along religious lines to allow parents to pick some schools but not schools that they think are best suited for their child—religious schools.

 

So those are the two dissents from Breyer and Sotomayor. Finally, I'll end with the impact of Carson. The immediate impact is for parents like David and Amy Carson and the Nelsons who desire a religious education and will have access to using the tuition benefit for the first time. It's worth noting that David and Amy Carson's daughter graduated while the case was out, and they kept pressing forward because they believed that this was an important thing to do to protect not only their Free Exercise rights but everyone else's.

 

The Nelsons, who have a son that is at a religious school -- and the Nelsons were faced with using the benefit of a school that was not religious or paying. And they couldn't afford a religious educational option, so their son was going to a school they didn't think was the best for him. They wanted a religious school. The Carsons faced a different type of injury. They had to pick between the benefit, like the Nelsons, or paying out of pocket. The Carsons could afford to pay out of pocket, and did, and then had to forego the benefit. That just distills the impact of the religious exclusion on people who simply want to pick a religious educational option for their child.

 

The other immediate impact is in Vermont. There's a case in Vermont right now challenging a very similar religious exclusion. There's a state in that case in light of Carson, and parents there, too—because Carson will be dispositive—in that case, will be able to pick the religious educational option if that's what they choose.

 

Taking a step back and looking at the broader impact nationally, most states, when adopting educational choice programs, are neutral towards religion, but in some states, whenever a legislature considers expanding an educational choice, like here in Texas where I'm at, the opponents of choice, often teachers unions and the like, will run to the legislature and vote the state's Blaine amendment as a weapon to create a cloud of uncertainty over the program or state statute that prohibits, similarly, the flow of public funds to a religious school. And if that doesn't work, they go to court, but no longer after Carson.

 

That is the area in which this decision in Carson v. Makin will have the most impact nationally. Any Blaine amendment or statute to the contrary is off the table after Carson. And so, just like after Espinoza, where we saw the expansion of existing school choice programs and new ones hitting the books, we expect the same thing to happen after Carson, which bookends Espinoza and makes clear that in the educational choice context—much like the Court has done when it established principles leading to Trinity Lutheran and everything that came afterwards, like Espinoza and now Carson—states, once they give a choice to parents, can't eliminate religious educational options from the menu of options that they have without violating the Free Exercise Clause. And so, I think I'll end there and answer any questions you might have.

 

Jenny Mahoney:  Thank you for that. We do have a few questions from the audience. I'll just relay these to you. So our first one is from Justin Jonkey [sp], and he's asking, "Do you see a difference in the approach that the Supreme Court applied to Makin versus how they applied their approach in Bruen and Dobbs?" He says, "The majority in Makin embraced an atextual reading of the Free Exercise Clause and mechanically applied on originalist precedent rather than following the text, history, and tradition approach embraced in Bruen and Dobbs."

 

Arif Panju:  Yeah. I mean, I think the way to read Carson v. Makin is in light of the principles that the Court laid out. I think the reason that it's a pretty understated opinion is because of all the work that the Court did before Carson hit the books. I think what you see in Carson is hostility from states in the face of clear precedent from the courts.

 

And that's why, in Carson v. Makin, all that was necessary to do is to invoke the clear readings of the Free Exercise Clause that the Court engaged in, whether it was in Verner in the employment benefit context or whether it was in Trinity Lutheran with playground resurfacing, a benefit that everyone could qualify for unless they were religious, and then Espinoza, which involved a remarkably similar posture here where you had parents needing to pick a religious school because they thought it was best.

 

I think that cases like Dobbs are quite different than this; there, I think the posture is completely different, obviously. You've got the Court trying to return back to a case that it believes it got wrong and going through the foundational underpinnings of the jurisprudence in explaining why. In Carson -- I mean, the Free Exercise Clause and the Establishment Clause coexist in the same provision.

 

And increasingly, if you look at the history of how the Establishment Clause has been employed by states to divide church and state, it's done so to such an extent that it's almost as if it assumes that the anti-establishment concerns govern and Free Exercise just comes next, but that's not the case. Free Exercise is deeply rooted in our history and tradition. There is no history or traditional roots that allow for the exclusion of funds to religious educational options, and that was enough in Espinoza, and it's enough in Carson.

 

I'll end with this. There's a couple of amicus briefs that dive deep into the underpinnings of why the Court maybe got it right in this case. I'd point you to the brief that Michael McConnell has submitted, written by the Nussbaum Law Firm, which is excellent, and also a great brief written by FedSoc colleague Sarah Harris on behalf of Professor Glenn, which both go into the historical roots of the Free Exercise Clause.

 

Jenny Mahoney:  Okay. Our next question comes from Mitchel Kider. "The majority distinguished Locke v. Davey by describing that as concerning training of clergy. Would it not have been more persuasive to note the Washington program concerned religious study instead of secular study, whereas the main program involved religious study in addition to secular study? Would Carson support or compel funding exclusively religious study so long as it was not training for a career in the clergy?"

 

Arif Panju:  I don't think Carson compels anything. I think Carson is predicated on the simple reality that once you allow parents to pick from a menu of options, you have to get out of the way, and that's it. The Court’s been narrowly construing Locke v. Davey now in several opinions, looking at what's going on in that case. And there, it found a root in history and tradition that said we could cut things off when you're trying to pursue the actual ministry. You want to actually lead your congregation.

 

And I don't think the Court had to do much here in Carson vis-à-vis Locke v. Davey, again because of Espinoza and Trinity Lutheran, but also because, here, you've got the -- it’s regulating the type of school that parents can select. The statute did not, at all, address what schools teach, what they have to teach, how they teach it. It simply said, "You can pick whatever school you want, but not a religious school."

 

It's a clean Free Exercise question. I think, because of how it was presented and because of how the law was framed, the Court didn't have to parse anything. Parents have a choice, and after Zelman, there is no Establishment problem there, and you can't satisfy strict scrutiny by invoking anti-establishment concerns when trying to take down a school choice program. So I think it was pretty straightforward and didn't require a deep dive into law.

 

Jenny Mahoney:  Our next question comes from Christopher Aguina [sp]. "Prior to this decision, was it legal to use the tuition money to send a child to a school which expressly taught values contrary to those expressed in the Constitution? If so, how did the state justify discriminating against religious institutions whose existence is protected by the Constitution while supporting those schools who taught values contrary to the Constitution?"

 

Arif Panju:  Yeah. And there's a footnote in the majority opinion that this statute doesn't do any of that. It did one thing. It drew a line right on religion. It was not neutral towards religion. And the one thing about the state constitution which Maine invoked primarily was the requirement—and you see this in all state constitutions—that states operate a system of free public schools. And it used that constitutional requirement to bake it into its recasting of the benefit and said, "Look, we're constitutionally required to provide a system of free public schools."

 

We have a very rural state, and some of the districts just don't have a public school and don't contract with a private school to act as the public school. Instead, it provides the tuition benefit. The State of Maine tried to bake in some culture war issues into the case, but nowhere in the statute does any of that appear. What appears in the statute is only one type of discrimination: religious discrimination. And that was enough for the Court to reject the characterization that Maine offered and that the First Circuit embraced and to reverse.

 

Jenny Mahoney:  Okay. Our next question comes from Chris Wolf. "Which freedom of religion case will have a bigger long-term impact: Carson or Kennedy? Kennedy gets rid of the Lemon test once and for all, but Professor McGinnis suggests Carson will allow for a renewal of educational institutions."

 

Arif Panju:  Yeah. That's a good question. I'd have to sit back and reflect a bit on it. I think, in terms of when Carson came down, where you have more than half the states that have school choice programs -- and, by the way, Freedom Foundation has a great website where you can go and look at your state, pull it up, and see what programs are available.

 

Because of when Carson came down and where we have school choice programs in more than half the states—and at IJ, we're very familiar with how these programs are attacked, especially at the legislature when they're just starting and before they're signed into law and also in court -- that Carson is going to have a tremendous impact.

 

Eliminating this idea that a Blaine amendment or a state statute that forbids the flow of funds to religious institutions in the context of a school choice program in Carson, that arrow is off the table. And it took 30 years. It took 10 years to get to Zelman, and then it took us another 20 years to get the Espinoza and Carson bookends, to get rid of the Establishment Clause attack, and the Blaine amendment religious discrimination flowing public funds to private religious institutions. That took another 20 years.

 

I think, over that time, starting with the very first program, with the Cleveland program all the way up until now, I think that Carson will have an outsized impact because of when it came down, that it directly addresses the remaining big arrow that repeatedly is used to attack school choice at legislatures even and in court. And because of that, and because of the momentum school choice has, I think it'll have a huge impact, both in state capitals and in state courts and the federal court.

 

Jenny Mahoney:  Our next question comes from Jeffrey Wood. "Did the Maine statute/program define religion, and was that issue addressed in Carson for purposes of the First Amendment? Some have argued that some things that might not look like religions at first blush may, in fact, be. For example, while communism-condemned religion as opiate of the people, as an ideology, it had many religious characteristics, including a metaphysical worldview, dialectical materialism, ethics, dictatorship of the proletariat, philosophy of history/eschatology, socialism to communism to withering of the state, and de facto cooption by nationalism, despite its international claims. If religion does not equal ideology, could government restrict funding of a school because of its nonreligious ideology?" Some examples he gives are a communist school, a school that advocates critical race theory or white nationalism, an expressly Republican or Democratic school, etc.

 

Arif Panju:  So the statute did not define religion. And I think, if you look at the majority opinion, when Espinoza came down -- and the majority opinion marches through this. When Espinoza came down, Maine kind of pivoted and said, "Well, religious schools can apply, but we still have to look into them." And I think, there, you're seeing Maine have to see, "Are you religious enough? Are you not religious enough?" And that struggle would exist if you try to define religion, and that presents issues on its own in the Establishment Clause.

 

I think if states want to begin trying to decipher what educational options are permissible and which aren't based on viewpoints that are expressed in those schools, despite parents themselves making the independent choice to pick the school themselves, you'd have different claims that you can bring to challenge those. And ultimately, the solution is not to have the government be the arbitrator of what educational options can and cannot exist.

 

I think Pierce v. Society of Sisters is directly on point here that we have a fundamental right to direct the education of our children, and nothing about that has changed over time. The solution, really, is to have a robust marketplace of religious educational options. And so, in Maine, the solution to Carson, if they don't like it, is to allow the marketplace to flourish with all sorts of options.

 

There's all sorts of reasons as a parent, as a family, that you'd pick a school. And it's not just what the school teaches; it's also maybe your child's experience at a prior school or their unique needs. And that's why the solution is really not to try to gerrymander educational options based on viewpoints or religion, but to embrace the ability of Americans to pick the school of their choice and allow the marketplace to flourish.

 

Jenny Mahoney:  Another question from Jeffrey Wood. "Besides criticizing the holding and the religious schools now eligible to receive funds from the Maine program, do you know if the Maine AG is doing anything substantive in response to this?"

 

Arif Panju:  Not yet. I did see the statement that came out. I'll say only that it's unfortunate, but unsurprising, that it reflects a complete misreading of the majority opinion. My suggestion is to just go back and reread the opinion and spend some time thinking about it. I mean, ultimately, the predecessor in 1980 got it completely wrong. And I think continuing to try to invoke anti-establishment concerns to maintain a hostility to religious educational options—and that's obviously on full display in the state of Maine since 1980, after Zelman in 2002, after Trinity Lutheran in 2017, and after Espinoza, even when Carson is being litigated -- that the lesson to learn, I think, for the AG is to not do things like that, to allow the people to experience and embrace the liberty that is guaranteed to them under the Constitution, including their right to Free Exercise.

 

And it's not for the AG to pick and choose which rights that are expressly stated in the Constitution—that you should try to be hostile to those rights. His job is to protect those rights. And so, I don't know of anything substantive in the wake of that, and I think we have yet to see. I think, ultimately, though, the opinion in how it's laid out—again, in a very understated opinion that reflects how clear the law is in this area—should give pause to opponents of educational choice, to stop trying to extinguish options that parents have available to them merely because you disagree with the option. That choice is for parents to decide, not the government.

 

Jenny Mahoney:  I have another question from Christopher Aguina [sp]. "Is there a chance that Maine will use the existence of online schools to justify ending the program? Politicians were unhappy, but the SCOTUS ruling could point to online public schools offered by the state for the reason they end the problem, even though they would be ending the program to not pay to send children to religious schools."

 

Arif Panju:  Yeah. I don't know if they would do that. If you've ever been to a rural area, the idea that you have the ability to pick a school that works for you, but then all of a sudden, because the government doesn't like your educational option that you yourself have a right to choose—why? Because it's religion—that we're going to extinguish the entire program and level down and replace it with an internet-based program, I think, reflects an approach that is, again, hostile, that is not really taking the child and the unique needs of children, especially children in rural areas, into account.

 

And so, I don't know if that's what they're going to do, but this program, again, has been on the books for well over a century. It dates back to the early 19th century. It's been baked into Maine law and in the way that rural Maine residents live their life for decades upon decades. And all Carson did is return things to the way they were before 1980 in Maine.

 

And if there wasn't a problem then, there isn't a problem now. There's obviously nothing wrong with adding remote educational options to supplement, but I think using that to supplant and eliminate an educational option that's been available for well over a century makes no sense as a matter of policy and, again, just reflects hostility towards religion, if that's the response to Carson.

 

Jenny Mahoney:  All right. And I'll just end with one last question from Paul Schmidt. "How do you foresee the Court resolving the conflict between state public accommodation or non-discrimination laws and religious schools operating according to the religious principles?"

 

Arif Panju:  I don't know. I mean, I think we'll see that. There's going to be litigation. There are cases. A lot of folks that weighed in as amici in Carson have their cases as well, and I think we're going to see the Court wrestle with that at some point. It's not an issue in Carson simply because the statute at issue didn't address any of those things. It was hostile to one thing and one thing only: religion. And we'll see what the Courts have to say in the wake of Carson, especially in light of these challenges that are going to hit the dockets. No doubt.

 

Jenny Mahoney:  Okay. Well, thank you. On behalf of The Federalist Society, I want to thank you for the benefit of your available time and expertise today, and I also want to thank the audience for joining and participating. We are going to start our next courthouse deposition webinar in five minutes at 2 p.m. Eastern on Vega v. Tekoh. I dropped the registration link in the chat if anybody would like to join. You can also find our upcoming webinars at fedsoc.org/teleforum. Thank you all for joining today. We are adjourned.

 

 

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