Carson v. Makin

Summary

Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments to parents who live in school districts that do not operate a secondary school of their own violates the Free Exercise Clause of the First Amendment.

Text

PRELIMINARY PRINT 
Volume 596 U. S. Part 2 
Pages 767–810 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
June 21, 2022 
REBECCA A. WOMELDORF 
reporter of decisions 
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NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
[email protected], of any typographical or other formal errors.

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OCTOBER TERM, 2021 767 
Syllabus 
CARSON, as parent and next friend of O. C., et al. 
v. MAKIN 
certiorari to the united states court of appeals for 
the rst circuit 
No. 20–1088. Argued December 8, 2021—Decided June 21, 2022 
Maine has enacted a program of tuition assistance for parents who live in 
school districts that neither operate a secondary school of their own 
nor contract with a particular school in another district. Under that 
program, parents designate the secondary school they would like their 
child to attend, and the school district transmits payments to that school 
to help defray the costs of tuition. Participating private schools must 
meet certain requirements to be eligible to receive tuition payments, 
including either accreditation from the New England Association of 
Schools and Colleges (NEASC) or approval from the Maine Department 
of Education. But they may otherwise differ from Maine public schools 
in various ways. Since 1981, however, Maine has limited tuition assist-
ance payments to “nonsectarian” schools. 
Petitioners sought tuition assistance to send their children to Bangor 
Christian Schools (BCS) and Temple Academy. Although both BCS and 
Temple Academy are accredited by NEASC, the schools do not qualify 
as “nonsectarian” and are thus ineligible to receive tuition payments 
under Maine's tuition assistance program. Petitioners sued the com-
missioner of the Maine Department of Education, alleging that the 
“nonsectarian” requirement violated the Free Exercise Clause and the 
Establishment Clause of the First Amendment, as well as the Equal 
Protection Clause of the Fourteenth Amendment. The District Court 
rejected petitioners' constitutional claims and granted judgment to the 
commissioner. The First Circuit affrmed. 
Held: Maine's “nonsectarian” requirement for otherwise generally avail-
able tuition assistance payments violates the Free Exercise Clause. 
Pp. 778–789. 
(a) The Free Exercise Clause of the First Amendment protects 
against “indirect coercion or penalties on the free exercise of religion, 
not just outright prohibitions.” Lyng v. Northwest Indian Cemetery 
Protective Assn., 485 U. S. 439, 450. The Court recently applied this 
principle in the context of two state efforts to withhold otherwise avail-
able public benefts from religious organizations. In Trinity Lutheran 
Church of Columbia, Inc. v. Comer, 582 U. S. 449, the Court considered 
a Missouri program that offered grants to qualifying nonproft organiza-

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768 CARSON v. MAKIN 
Syllabus 
tions that installed cushioning playground surfaces, but denied such 
grants to any applicant that was owned or controlled by a church, sect, 
or other religious entity. The Court held that the Free Exercise Clause 
did not permit Missouri to “expressly discriminate[ ] against otherwise 
eligible recipients by disqualifying them from a public beneft solely be-
cause of their religious character.” Id., at 462. And in Espinoza v. 
Montana Dept. of Revenue , 591 U. S. –––, the Court held that a provi-
sion of the Montana Constitution barring government aid to any school 
“controlled in whole or in part by any church, sect, or denomina-
tion” violated the Free Exercise Clause by prohibiting families from 
using otherwise available scholarship funds at religious schools. Id., 
at –––. “A State need not subsidize private education,” the Court con-
cluded, “[b]ut once a State decides to do so, it cannot disqualify some 
private schools solely because they are religious.” Id., at –––. 
Pp. 778–780. 
(b) The principles applied in Trinity Lutheran and Espinoza suffce 
to resolve this case. Maine offers its citizens a beneft: tuition assist-
ance payments for any family whose school district does not provide a 
public secondary school. Just like the wide range of nonproft organiza-
tions eligible to receive playground resurfacing grants in Trinity Lu-
theran, a wide range of private schools are eligible to receive Maine 
tuition assistance payments here. And like the daycare center in Trin-
ity Lutheran, the religious schools in this case are disqualifed from this 
generally available beneft “solely because of their religious character.” 
582 U. S., at 462. Likewise, in Espinoza, as here, the Court considered 
a state beneft program that provided public funds to support tuition 
payments at private schools and specifcally carved out private religious 
schools from those eligible to receive such funds. Both that program 
and this one disqualify certain private schools from public funding 
“solely because they are religious.” 591 U. S., at –––. A law that oper-
ates in that manner must be subjected to “the strictest scrutiny.” Id., 
at ––– – –––. 
Maine's program cannot survive strict scrutiny. A neutral beneft 
program in which public funds fow to religious organizations through 
the independent choices of private beneft recipients does not offend 
the Establishment Clause. See Zelman v. Simmons-Harris, 536 U. S. 
639, 652–653. Maine's decision to continue excluding religious schools 
from its tuition assistance program after Zelman thus promotes stricter 
separation of church and state than the Federal Constitution requires. 
But a State's antiestablishment interest does not justify enactments 
that exclude some members of the community from an otherwise 
generally available public beneft because of their religious exercise. 
Pp. 780–781.

Cite as: 596 U. S. 767 (2022) 769 
Syllabus 
(c) The First Circuit's attempts to recharacterize the nature of 
Maine's tuition assistance program do not suffce to distinguish this case 
from Trinity Lutheran or Espinoza. Pp. 782–789. 
(1) The First Circuit held that the “nonsectarian” requirement was 
constitutional because the beneft was properly viewed not as tuition 
payments to be used at approved private schools but instead as funding 
for the “rough equivalent of the public school education that Maine may 
permissibly require to be secular.” 979 F. 3d 21, 44. But the statute 
does not say anything like that. The beneft provided by statute is 
tuition at a public or private school, selected by the parent, with no 
suggestion that the “private school” must somehow provide a “public” 
education. Moreover, the differences between private schools eligible 
to receive tuition assistance under Maine's program and a Maine public 
school are numerous and important. To start with, private schools do 
not have to accept all students, while public schools generally do. In 
addition, the free public education that Maine insists it is providing 
through the tuition assistance program is often not free, as some partici-
pating private schools charge several times the maximum beneft that 
Maine is willing to provide. And the curriculum taught at participating 
private schools need not even resemble that taught in the Maine public 
schools. 
The key manner in which participating private schools are required 
to resemble Maine public schools, however, is that they must be secular. 
Maine may provide a strictly secular education in its public schools. 
But BCS and Temple Academy—like numerous other recipients of 
Maine tuition assistance payments—are not public schools. Maine has 
chosen to offer tuition assistance that parents may direct to the public 
or private schools of their choice. Maine's administration of that beneft 
is subject to the free exercise principles governing any public beneft 
program—including the prohibition on denying the beneft based on a 
recipient's religious exercise. Pp. 782–785. 
(2) The Court of Appeals also attempted to distinguish this case from 
Trinity Lutheran and Espinoza on the ground that the funding restric-
tions in those cases were “solely status-based religious discrimination,” 
while the challenged provision here “imposes a use-based restriction.” 
979 F. 3d, at 35, 37–38. Trinity Lutheran and Espinoza held that the 
Free Exercise Clause forbids discrimination on the basis of religious 
status. But those decisions never suggested that use-based discrimina-
tion is any less offensive to the Free Exercise Clause. This case illus-
trates why. “[E]ducating young people in their faith, inculcating its 
teachings, and training them to live their faith are responsibilities that 
lie at the very core of the mission of a private religious school.” Our 
Lady of Guadalupe School v. Morrissey-Berru, 591 U. S. –––, –––. In 
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770 CARSON v. MAKIN 
Syllabus 
short, the prohibition on status-based discrimination under the Free Ex-
ercise Clause is not a permission to engage in use-based discrimination. 
Locke v. Davey, 540 U. S. 712, does not assist Maine here. The schol-
arship funds at issue in Locke were intended to be used “to prepare for 
the ministry.” Trinity Lutheran, 582 U. S., at 464. Locke's reasoning 
expressly turned on what it identifed as the “historic and substantial 
state interest” against using “taxpayer funds to support church lead-
ers.” 540 U. S., at 722, 725. But “it is clear that there is no `historic 
and substantial' tradition against aiding [private religious] schools” that 
is “comparable.” Espinoza, 591 U. S., at –––. Locke cannot be read 
to generally authorize the State to exclude religious persons from the 
enjoyment of public benefts on the basis of their anticipated religious 
use of the benefts. Pp. 786–789. 
979 F. 3d 21, reversed and remanded. 
Roberts, C. J., delivered the opinion of the Court, in which Thomas, 
Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Breyer, J., 
fled a dissenting opinion, in which Kagan J., joined, and in which Soto-
mayor, J., joined as to all but Part I–B, post, p. 789. Sotomayor, J., fled 
a dissenting opinion, post, p. 806. 
Michael E. Bindas argued the cause for petitioners. With 
him on the briefs were Arif Panju, Kirby Thomas West, 
Kelly J. Shackelford, Michael K. Whitehead, and Jonathan 
R. Whitehead. 
Christopher C. Taub, Chief Deputy Attorney General of 
Maine, argued the cause for respondent. With him on the 
brief were Aaron M. Frey , Attorney General, and Sarah A. 
Forster, Assistant Attorney General. 
Deputy Solicitor General Stewart argued the cause for the 
United States as amicus curiae supporting respondent. 
With him on the brief were Solicitor General Prelogar, Act-
ing Assistant Attorney General Boynton, Frederick Liu, 
Mark R. Freeman, and Michael S. Raab.* 
*Briefs of amici curiae urging reversal were fled for the State of Ar-
kansas et al. by Leslie Rutledge, Attorney General of Arkansas, Nicholas 
J. Bronni, Solicitor General, Vincent M. Wagner, Deputy Solicitor General, 
and Michael A. Cantrell, Assistant Solicitor General, and by the Attorneys 
General for their respective States as follows: Steve Marshall of Alabama, 
Mark Brnovich of Arizona, Ashley Moody of Florida, Chr istopher 
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Cite as: 596 U. S. 767 (2022) 771 
Opinion of the Court 
Chief Justice Roberts delivered the opinion of the 
Court. 
Maine has enacted a program of tuition assistance for par-
ents who live in school districts that do not operate a second-
M. Carr of Georgia, Lawrence G. Wasden of Idaho, Derek Schmidt of Kan-
sas, Daniel Cameron of Kentucky, Jeff Landry of Louisiana, Lynn Fitch 
of Mississippi, Eric S. Schmitt of Missouri, Austin Knudsen of Montana, 
Douglas J. Peterson of Nebraska, John Formella of New Hampshire, Dave 
Yost of Ohio, John M. O'Connor of Oklahoma, Alan Wilson of South Caro-
lina, Herbert H. Slatery III of Tennessee, Ken Paxton of Texas, Sean D. 
Reyes of Utah, and Patrick Morrisey of West Virginia; for Advancing 
American Freedom, Inc., by Matthew J. Sheehan; for the American Center 
for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Jordan Seku-
low, Colby M. May, Walter M. Weber, and Laura B. Hernandez; for the 
Americans for Prosperity Foundation et al. by Cynthia Fleming Crawford 
and Casey Mattox; for the Becket Fund for Religious Liberty by Eric C. 
Rassbach and Diana Verm Thomson; for the Buckeye Institute by Larry 
J. Obhof, Jr., and Robert Alt; for the Cato Institute by Ilya Shapiro; for 
the Christian Legal Society et al. by Kimberlee Wood Colby, Thomas C. 
Berg, and Douglas Laycock; for the Church of Jesus Christ of Latter-day 
Saints et al. by Alexander Dushku and R. Shawn Gunnarson; for the 
Defense of Freedom Institute for Policy Studies, Inc., by David Boies and 
Jesse Panuccio; for EdChoice et al. by Leslie Davis Hiner and Russell 
Menyhart; for Freedom X by Mitchell Keiter, William J. Becker, Jr., and 
Paul Hoffman; for the Georgia Goal Scholarship Program, Inc., by James 
P . Kelly III and Harry W. MacDougald; for Hillsdale College by Paul J. 
Ray and Ryan J. Walsh; for the Independent Women's Law Center et al. 
by Edward M. Wenger and Dallin B. Holt; for Innovative Schools by Ally-
son N. Ho; for the Jewish Coalition of Religious Liberty by Kristen K. 
Waggoner, John J. Bursch, David A. Cortman, Erin Morrow Hawley, and 
Anthony J. Dick; for Members of the United States Senate by Joshua D. 
Davey; for the National Jewish Commission on Law and Public Affairs 
et al. by Nathan Lewin, Alyza D. Lewin, and Dennis Rapps; for the Part-
nership for Inner-City Education et al. by Michael H. McGinley and Rich-
ard W. Garnett IV; for Protect the First Foundation by Gene C. Schaerr, 
Erik S. Jaffe, Hannah C. Smith, and Kathryn E. Tarbert; for the Southern 
Christian Leadership Conference Memphis Chapter et al. by Arthur J. 
Burke; for the Stanley M. Herzog Charitable Foundation by Jonathan 
P . Lienhard and Kenneth C. Daines; for the Union of Orthodox Jewish 
Congregations of America by Gordon D. Todd and Nathan J. Diament; for 
the World Faith Foundation et al. by James L. Hirsen, Deborah J. Dewart,

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772 CARSON v. MAKIN 
Opinion of the Court 
ary school of their own. Under the program, parents desig-
nate the secondary school they would like their child to 
attend—public or private—and the school district transmits 
payments to that school to help defray the costs of tuition. 
and Tami Fitzgerald; for Ashley R. Berner by Dominic E. Draye; for 
Charles L. Glenn by Sarah M. Harris; and for Michael W. McConnell by 
L. Martin Nussbaum and Andrew M. Nussbaum. 
Briefs of amici curiae urging affrmance were fled for the State of 
Vermont by Thomas J. Donovan, Jr., Attorney General of Vermont, Ben-
jamin D. Battles, Solicitor General, and Rachel E. Smith, Deputy Solicitor 
General; for the Commonwealth of Virginia et al. by Mark R. Herring , 
Attorney General of Virginia, Michelle S. Kallen, Acting Solicitor General, 
Erin B. Ashwell, Chief Deputy Attorney General, and Laura H. Cahill, 
Assistant Attorney General, and by the Attorneys General for their re-
spective jurisdictions as follows: Rob Bonta of California, Kathleen Jen-
nings of Delaware, Karl A. Racine of the District of Columbia, Maura 
Healey of Massachusetts, Keith Ellison of Minnesota, Hector Balderas of 
New Mexico, Letitia James of New York, Ellen F. Rosenblum of Oregon, 
and Robert W. Ferguson of Washington; for the Advancement Project Na-
tional Offce et al. by Kirk Jenkins and Janine M. Lopez; for American 
Atheists, Inc., by Geoffrey T. Blackwell; for Education and Constitutional 
Law Scholars by Michael A. Brown and Derek W. Black; for the Freedom 
From Religion Foundation et al. by Patrick Elliott; for the Maine School 
Management Association et al. by Eric R. Herlan, Peter C. Felmly, and 
Amy K. Olfene; for the National Education Association et al. by Ramya 
Ravindran, Alice O'Brien, Kevin K. Russell, Rhonda Weingarten, David 
J. Strom, and Nicole G. Berner; for the National School Boards Association 
et al. by Francisco M. Negrón, Jr., and Sonja H. Trainor; for Public Funds 
Public Schools by Richard A. Simpson, Elizabeth Jewell, Jessica Levin, 
and F. Andrew Hessick; and for Religious Organizations et al. by Richard 
B. Katskee, Alex J. Luchenitser, K. Hollyn Hollman, Jennifer L. Hawks, 
David D. Cole, Daniel Mach, Heather L. Weaver, Zachary L. Heiden, and 
Monica L. Miller . 
Briefs of amici curiae were fled for the Claremont Institute Center for 
Constitutional Jurisprudence by Anthony T. Caso; for Concerned Women 
for America et al. by Frederick W. Claybrook, Jr., Steven W. Fitschen, 
and James A. Davids; for the Foundation for Moral Law by John A. Eids-
moe and Roy S. Moore; for the Liberty Justice Center et al. by Daniel R. 
Suhr and Lawrence S. Ebner; and for the Pioneer Institute by Michael C. 
Gilleran and Ryan C. McKenna.

Cite as: 596 U. S. 767 (2022) 773 
Opinion of the Court 
Most private schools are eligible to receive the payments, so 
long as they are “nonsectarian.” The question presented is 
whether this restriction violates the Free Exercise Clause of 
the First Amendment. 
I 
A 
Maine's Constitution provides that the State's legislature 
shall “require . . . the several towns to make suitable provi-
sion, at their own expense, for the support and maintenance 
of public schools.” Me. Const., Art. VIII, pt. 1, § 1. In ac-
cordance with that command, the legislature has required 
that every school-age child in Maine “shall be provided an 
opportunity to receive the benefts of a free public educa-
tion,” Me. Rev. Stat. Ann., Tit. 20–A, § 2(1) (2008), and that 
the required schools be operated by “the legislative and gov-
erning bodies of local school administrative units,” § 2(2). 
But Maine is the most rural State in the Union, and for many 
school districts the realities of remote geography and low 
population density make those commands diffcult to heed. 
Indeed, of Maine's 260 school administrative units (SAUs), 
fewer than half operate a public secondary school of their 
own. App. 4, 70, 73. 
Maine has sought to deal with this problem in part by cre-
ating a program of tuition assistance for families that reside 
in such areas. Under that program, if an SAU neither oper-
ates its own public secondary school nor contracts with a 
particular public or private school for the education of its 
school-age children, the SAU must “pay the tuition . . . at 
the public school or the approved private school of the par-
ent's choice at which the student is accepted.” Me. Rev. 
Stat. Ann., Tit. 20–A, § 5204(4) (Cum. Supp. 2021). Parents 
who wish to take advantage of this beneft frst select the 
school they wish their child to attend. Ibid. If they select 
a private school that has been “approved” by the Maine De-
partment of Education, the parents' SAU “shall pay the tu-
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774 CARSON v. MAKIN 
Opinion of the Court 
ition” at the chosen school up to a specifed maximum rate. 
See §§ 2902, 2951, 5204(4). 
To be “approved” to receive these payments, a private 
school must meet certain basic requirements under Maine's 
compulsory education law. § 2951(1). The school must 
either be “[c]urrently accredited by a New England associa-
tion of schools and colleges” or separately “approv[ed] for 
attendance purposes” by the Department. §§ 2901(2), 2902. 
Schools seeking approval from the Department must meet 
specifed curricular requirements, such as using English as 
the language of instruction, offering a course in “Maine his-
tory, including the Constitution of Maine . . . and Maine's 
cultural and ethnic heritage,” and maintaining a student-
teacher ratio of not more than 30 to 1. §§ 2902(2), 2902(3), 
4706(2), 2902(6)(C). 
The program imposes no geographic limitation: Parents 
may direct tuition payments to schools inside or outside the 
State, or even in foreign countries. §§ 2951(3), 5808. In 
schools that qualify for the program because they are accred-
ited, teachers need not be certifed by the State, § 13003(3), 
and Maine's curricular requirements do not apply, § 2901(2). 
Single-sex schools are eligible. See Me. Rev. Stat. Ann., Tit. 
5, § 4553(2–A) (exempting single-sex private, but not public, 
schools from Maine's antidiscrimination law). 
Prior to 1981, parents could also direct the tuition assist-
ance payments to religious schools. Indeed, in the 1979– 
1980 school year, over 200 Maine students opted to attend 
such schools through the tuition assistance program. App. 
72. In 1981, however, Maine imposed a new requirement 
that any school receiving tuition assistance payments must 
be “a nonsectarian school in accordance with the First 
Amendment of the United States Constitution.” Me. Rev. 
Stat. Ann., Tit. 20–A, § 2951(2). That provision was enacted 
in response to an opinion by the Maine attorney general 
taking the position that public funding of private religious 
schools violated the Establishment Clause of the First 
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Cite as: 596 U. S. 767 (2022) 775 
Opinion of the Court 
Amendment. We subsequently held, however, that a beneft 
program under which private citizens “direct government 
aid to religious schools wholly as a result of their own genu-
ine and independent private choice” does not offend the Es-
tablishment Clause. Zelman v. Simmons-Harris, 536 U. S. 
639, 652 (2002). Following our decision in Zelman, the 
Maine Legislature considered a proposed bill to repeal the 
“nonsectarian” requirement, but rejected it. App. 100, 108. 
The “nonsectarian” requirement for participation in 
Maine's tuition assistance program remains in effect today. 
The Department has stated that, in administering this re-
quirement, it “considers a sectarian school to be one that is 
associated with a particular faith or belief system and which, 
in addition to teaching academic subjects, promotes the faith 
or belief system with which it is associated and/or presents 
the material taught through the lens of this faith.” 979 F. 3d 
21, 38 (CA1 2020). “The Department's focus is on what the 
school teaches through its curriculum and related activities, 
and how the material is presented.” Ibid. (emphasis de-
leted). “[A]ffliation or association with a church or religious 
institution is one potential indicator of a sectarian school,” 
but “it is not dispositive.” Ibid. 
B 
This case concerns two families that live in SAUs that nei-
ther maintain their own secondary schools nor contract with 
any nearby secondary school. App. 70, 71. Petitioners 
David and Amy Carson reside in Glenburn, Maine. Id., at 
74. When this litigation commenced, the Carsons' daughter 
attended high school at Bangor Christian Schools (BCS), 
which was founded in 1970 as a ministry of Bangor Baptist 
Church. Id., at 74, 80. The Carsons sent their daughter 
to BCS because of the school's high academic standards and 
because the school's Christian worldview aligns with their 
sincerely held religious beliefs. Id., at 74. Given that BCS 
is a “sectarian” school that cannot qualify for tuition assist-
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776 CARSON v. MAKIN 
Opinion of the Court 
ance payments under Maine's program, id., at 80, the Car-
sons paid the tuition for their daughter to attend BCS them-
selves, id., at 74. 
Petitioners Troy and Angela Nelson live in Palermo, 
Maine. Id., at 78. When this litigation commenced, the 
Nelsons' daughter attended high school at Erskine Academy, 
a secular private school, and their son attended middle school 
at Temple Academy, a “sectarian” school affliated with Cen-
terpoint Community Church. Id., at 78, 90, 91. The Nel-
sons sent their son to Temple Academy because they be-
lieved it offered him a high-quality education that aligned 
with their sincerely held religious beliefs. Id., at 78. While 
they wished to send their daughter to Temple Academy too, 
they could not afford to pay the cost of the Academy's tuition 
for both of their children. Id., at 79. 
BCS and Temple Academy are both accredited by the New 
England Association of Schools and Colleges (NEASC), and 
the Department considers each school a “private school ap-
proved for attendance purposes” under the State's compul-
sory attendance requirement. Id., at 80, 90. Yet because 
neither school qualifes as “nonsectarian,” neither is eligible 
to receive tuition payments under Maine's tuition assistance 
program. Id., at 80, 90. Absent the “nonsectarian” re-
quirement, the Carsons and the Nelsons would have asked 
their respective SAUs to pay the tuition to send their chil-
dren to BCS and Temple Academy, respectively. Id., at 79. 
In 2018, petitioners brought suit against the commissioner 
of the Maine Department of Education. Id., at 11–12. They 
alleged that the “nonsectarian” requirement of Maine's tu-
ition assistance program violated the Free Exercise Clause 
and the Establishment Clause of the First Amendment, id., 
at 23–27, as well as the Equal Protection Clause of the Four-
teenth Amendment, id., at 29–30. Their complaint sought 
declaratory and injunctive relief against enforcement of the 
requirement. Id., at 31–32. The parties fled cross-motions 
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Cite as: 596 U. S. 767 (2022) 777 
Opinion of the Court 
for summary judgment on a stipulated record. 401 F. Supp. 
3d 207, 208 (Me. 2019). Applying Circuit precedent that had 
previously upheld the “nonsectarian” requirement against 
challenge, see Eulitt v. Maine Dept. of Ed., 386 F. 3d 344 
(CA1 2004), the District Court rejected petitioners' constitu-
tional claims and granted judgment to the commissioner. 
401 F. Supp. 3d, at 209–212. 
While petitioners' appeal to the First Circuit was pending, 
this Court decided Espinoza v. Montana Dept. of Revenue , 
591 U. S. ––– (2020). Espinoza held that a provision of the 
Montana Constitution barring government aid to any school 
“controlled in whole or in part by any church, sect, or denom-
ination,” Art. X, § 6(1), violated the Free Exercise Clause by 
prohibiting families from using otherwise available scholar-
ship funds at the religious schools of their choosing. The 
First Circuit recognized that, in light of Espinoza, its prior 
precedent upholding Maine's “nonsectarian” requirement 
was no longer controlling. 979 F. 3d, at 32–36. But it nev-
ertheless affrmed the District Court's grant of judgment to 
the commissioner. Id., at 49. 
As relevant here, the First Circuit offered two grounds to 
distinguish Maine's “nonsectarian” requirement from the 
no-aid provision at issue in Espinoza. First, the panel rea-
soned that, whereas Montana had barred schools from receiv-
ing funding “simply based on their religious identity—a sta-
tus that in and of itself does not determine how a school 
would use the funds”—Maine bars BCS and Temple Acad-
emy from receiving funding “based on the religious use that 
they would make of it in instructing children.” 979 F. 3d, 
at 40. Second, the panel determined that Maine's tuition as-
sistance program was distinct from the scholarships at issue 
in Espinoza because Maine had sought to provide “a rough 
equivalent of the public school education that Maine may 
permissibly require to be secular but that is not otherwise 
accessible.” 979 F. 3d, at 44. Thus, “the nature of the re-
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778 CARSON v. MAKIN 
Opinion of the Court 
striction at issue and the nature of the school aid program of 
which it is a key part” led the panel to conclude “once again” 
that Maine's “nonsectarian” requirement did not violate the 
Free Exercise Clause. Id., at 46. 
We granted certiorari. 594 U. S. ––– (2021). 
II 
A 
The Free Exercise Clause of the First Amendment pro-
tects against “indirect coercion or penalties on the free exer-
cise of religion, not just outright prohibitions.” Lyng v. 
Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 
450 (1988). In particular, we have repeatedly held that a 
State violates the Free Exercise Clause when it excludes 
religious observers from otherwise available public benefts. 
See Sherbert v. Verner, 374 U. S. 398, 404 (1963) (“It is too 
late in the day to doubt that the liberties of religion and 
expression may be infringed by the denial of or placing of 
conditions upon a beneft or privilege.”); see also Everson v. 
Board of Ed. of Ewing , 330 U. S. 1, 16 (1947) (a State “cannot 
exclude” individuals “ because of their faith, or lack of it, 
from receiving the benefts of public welfare legislation”). A 
State may not withhold unemployment benefts, for instance, 
on the ground that an individual lost his job for refusing to 
abandon the dictates of his faith. See Sherbert, 374 U. S., at 
399–402 (Seventh-day Adventist who refused to work on the 
Sabbath); Thomas v. Review Bd. of Ind. Employment Secu-
rity Div., 450 U. S. 707, 709, 720 (1981) (Jehovah's Witness 
who refused to participate in the production of armaments). 
We have recently applied these principles in the context 
of two state efforts to withhold otherwise available public 
benefts from religious organizations. In Trinity Lutheran 
Church of Columbia, Inc. v. Comer, 582 U. S. 449 (2017), we 
considered a Missouri program that offered grants to qualify-
ing nonproft organizations that installed cushioning play-
ground surfaces made from recycled rubber tires. The 
Missouri Department of Natural Resources maintained an 
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Cite as: 596 U. S. 767 (2022) 779 
Opinion of the Court 
express policy of denying such grants to any applicant owned 
or controlled by a church, sect, or other religious entity. 
The Trinity Lutheran Church Child Learning Center applied 
for a grant to resurface its gravel playground, but the De-
partment denied funding on the ground that the Center was 
operated by the Church. 
We deemed it “unremarkable in light of our prior deci-
sions” to conclude that the Free Exercise Clause did not 
permit Missouri to “expressly discriminate[ ] against other-
wise eligible recipients by disqualifying them from a public 
beneft solely because of their religious character.” Id., at 
462. While it was true that Trinity Lutheran remained 
“free to continue operating as a church,” it could enjoy that 
freedom only “at the cost of automatic and absolute exclusion 
from the benefts of a public program for which the Center 
[was] otherwise fully qualifed.” Ibid. (citing McDaniel v. 
Paty, 435 U. S. 618, 626 (1978) (plurality opinion)). Such dis-
crimination, we said, was “odious to our Constitution” and 
could not stand. 582 U. S., at 467. 
Two Terms ago, in Espinoza, we reached the same conclu-
sion as to a Montana program that provided tax credits to 
donors who sponsored scholarships for private school tuition. 
The Montana Supreme Court held that the program, to the 
extent it included religious schools, violated a provision of 
the Montana Constitution that barred government aid to any 
school controlled in whole or in part by a church, sect, or 
denomination. As a result of that holding, the State termi-
nated the scholarship program, preventing the petitioners 
from accessing scholarship funds they otherwise would have 
used to fund their children's educations at religious schools. 
We again held that the Free Exercise Clause forbade the 
State's action. The application of the Montana Constitu-
tion's no-aid provision, we explained, required strict scrutiny 
because it “bar[red] religious schools from public benefts 
solely because of the religious character of the schools.” Es-
pinoza, 591 U. S., at –––. “A State need not subsidize pri-
vate education,” we concluded, “[b]ut once a State decides to 
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780 CARSON v. MAKIN 
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do so, it cannot disqualify some private schools solely because 
they are religious.” Id., at –––. 
B 
The “unremarkable” principles applied in Trinity Lu -
theran and Espinoza suffce to resolve this case. Maine of-
fers its citizens a beneft: tuition assistance payments for any 
family whose school district does not provide a public second-
ary school. Just like the wide range of nonproft organiza-
tions eligible to receive playground resurfacing grants in 
Trinity Lutheran, a wide range of private schools are eligi-
ble to receive Maine tuition assistance payments here. And 
like the daycare center in Trinity Lutheran, BCS and Tem-
ple Academy are disqualifed from this generally available 
beneft “solely because of their religious character.” 582 
U. S., at 462. By “condition[ing] the availability of benefts” 
in that manner, Maine's tuition assistance program—like the 
program in Trinity Lutheran—“effectively penalizes the 
free exercise” of religion. Ibid. (quoting McDaniel, 435 
U. S., at 626 (plurality opinion)). 
Our recent decision in Espinoza applied these basic princi-
ples in the context of religious education that we consider 
today. There, as here, we considered a state beneft pro-
gram under which public funds fowed to support tuition pay-
ments at private schools. And there, as here, that program 
specifcally carved out private religious schools from those 
eligible to receive such funds. While the wording of the 
Montana and Maine provisions is different, their effect is the 
same: to “disqualify some private schools” from funding 
“solely because they are religious.” 591 U. S., at –––. A 
law that operates in that manner, we held in Espinoza, must 
be subjected to “the strictest scrutiny.” Id., at ––– – –––. 
To satisfy strict scrutiny, government action “must ad-
vance `interests of the highest order' and must be narrowly 
tailored in pursuit of those interests.” Church of Lukumi 
Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993) (quot-
ing McDaniel, 435 U. S., at 628 (plurality opinion)). “A law 
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that targets religious conduct for distinctive treatment . . . 
will survive strict scrutiny only in rare cases.” 508 U. S., 
at 546. 
This is not one of them. As noted, a neutral beneft pro-
gram in which public funds fow to religious organizations 
through the independent choices of private beneft recipients 
does not offend the Establishment Clause. See Zelman, 536 
U. S., at 652–653. Maine's decision to continue excluding re-
ligious schools from its tuition assistance program after Zel-
man thus promotes stricter separation of church and state 
than the Federal Constitution requires. See also post, at 
792 (Breyer, J., dissenting) (States may choose “not to fund 
certain religious activity . . . even when the Establishment 
Clause does not itself prohibit the State from funding that 
activity”); post, at 806–807 ( Sotomayor , J., dissenting) 
(same point). 
But as we explained in both Trinity Lutheran and Es-
pinoza, such an “interest in separating church and state 
`more fercely' than the Federal Constitution . . . `cannot qual-
ify as compelling' in the face of the infringement of free exer-
cise.” Espinoza, 591 U. S., at ––– (quoting Trinity Lu-
theran, 582 U. S., at 466); see also Widmar v. Vincent, 454 
U. S. 263, 276 (1981) (“[T]he state interest . . . in achieving 
greater separation of church and State than is already en-
sured under the Establishment Clause . . . is limited by the 
Free Exercise Clause.”). Justice Breyer stresses the im-
portance of “government neutrality” when it comes to reli-
gious matters, post, at 800, but there is nothing neutral about 
Maine's program. The State pays tuition for certain students 
at private schools—so long as the schools are not religious. 
That is discrimination against religion. A State's antiestab-
lishment interest does not justify enactments that exclude 
some members of the community from an otherwise generally 
available public beneft because of their religious exercise.* 
*Both dissents articulate a number of other reasons not to extend the 
tuition assistance program to BCS and Temple Academy, based on the 
schools' particular policies and practices. Post, at 803–804 (opinion of 
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III 
The First Circuit attempted to distinguish our precedent 
by recharacterizing the nature of Maine's tuition assistance 
program in two ways, both of which Maine echoes before this 
Court. First, the panel defned the beneft at issue as the 
“rough equivalent of [a Maine] public school education,” an 
education that cannot include sectarian instruction. 979 
F. 3d, at 44; see also Brief for Respondent 22. Second, the 
panel defned the nature of the exclusion as one based not 
on a school's religious “status,” as in Trinity Lutheran and 
Espinoza, but on religious “uses” of public funds. 979 F. 3d, 
at 38–40; see also Brief for Respondent 35. Neither of these 
formal distinctions suffices to distinguish this case from 
Trinity Lutheran or Espinoza, or to affect the application of 
the free exercise principles outlined above. 
A 
The First Circuit held that the “nonsectarian” requirement 
was constitutional because the beneft was properly viewed 
not as tuition assistance payments to be used at approved 
private schools, but instead as funding for the “rough equiva-
lent of the public school education that Maine may permissi-
bly require to be secular.” 979 F. 3d, at 44. As Maine puts 
it, “[t]he public beneft Maine is offering is a free public edu-
cation.” Brief for Respondent 1–2. 
To start with, the statute does not say anything like that. 
It says that an SAU without a secondary school of its own 
“shall pay the tuition . . . at the public school or the approved 
private school of the parent's choice at which the student is 
accepted.” Me. Rev. Stat. Ann., Tit. 20–A, § 5204(4). The 
beneft is tuition at a public or private school, selected by 
Breyer, J.); post, at 809 (opinion of Sotomayor, J.). Maine rightly does 
not attempt to defend its law on such grounds, however, because the law 
rigidly excludes any and all sectarian schools regardless of particular char-
acteristics. See supra, at 774–775. 
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the parent, with no suggestion that the “private school” must 
somehow provide a “public” education. 
This reading of the statute is confrmed by the program's 
operation. The differences between private schools eligible 
to receive tuition assistance under Maine's program and a 
Maine public school are numerous and important. To start 
with the most obvious, private schools are different by def-
nition because they do not have to accept all students. Pub-
lic schools generally do. Second, the free public education 
that Maine insists it is providing through the tuition as-
sistance program is often not free. That “assistance” is 
available at private schools that charge several times the 
maximum beneft that Maine is willing to provide. See 
Stipulated Record, Exh. 2, in No. 1:18–cv–327 (Me., Mar. 12, 
2019), ECF Doc. 24–2, p. 11; Brief for Respondent 32. 
Moreover, the curriculum taught at participating private 
schools need not even resemble that taught in the Maine pub-
lic schools. For example, Maine public schools must abide 
by certain “parameters for essential instruction in English 
language arts; mathematics; science and technology; social 
studies; career and education development; visual and per-
forming arts; health, physical education and wellness; and 
world languages.” § 6209. But NEASC-accredited private 
schools are exempt from these requirements, and instead 
subject only to general “standards and indicators” governing 
the implementation of their own chosen curriculum. Brief 
for Respondent 32; see NEASC, Standards—20/20 Process 
(rev. Aug. 2021), https://cis.neasc.org/standards2020 (requir-
ing, for instance, that “[c]urriculum planning supports 
the school's core beliefs and the needs of the students,” 
and that the “[w]ritten curriculum aligns horizontally and 
vertically”). 
Private schools approved by the Department (rather than 
accredited by NEASC) are likewise exempt from many of 
the State's curricular requirements, so long as fewer than 
60% of their students receive tuition assistance from the 
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784 CARSON v. MAKIN 
Opinion of the Court 
State. For instance, such schools need not abide by Maine's 
“comprehensive, statewide system of learning results,” in-
cluding the “parameters for essential instruction” referenced 
above, and they need not administer the annual state assess-
ments in English language arts, mathematics, and science. 
§§ 2951(6), 6209; see also ECF Doc. 24–2, at 9. 
There are other distinctions, too. Participating schools 
need not hire state-certifed teachers. Compare Me. Rev. 
Stat. Ann., Tit. 20–A, § 13003(1), with § 13003(3). And the 
schools can be single-sex. See ECF Doc. 24–2, at 11. In 
short, it is simply not the case that these schools, to be eligi-
ble for state funds, must offer an education that is equiva-
lent—roughly or otherwise—to that available in the Maine 
public schools. 
But the key manner in which the two educational experi-
ences are required to be “equivalent” is that they must both 
be secular. Saying that Maine offers a beneft limited to 
private secular education is just another way of saying that 
Maine does not extend tuition assistance payments to par-
ents who choose to educate their children at religious 
schools. But “the defnition of a particular program can al-
ways be manipulated to subsume the challenged condition,” 
and to allow States to “recast a condition on funding” in this 
manner would be to see “the First Amendment . . . reduced 
to a simple semantic exercise.” Agency for Int'l Develop-
ment v. Alliance for Open Society Int'l, Inc., 570 U. S. 205, 
215 (2013) (quoting Legal Services Corporation v. Velazquez, 
531 U. S. 533, 547 (2001)); see also Walz v. Tax Comm'n of 
City of New York, 397 U. S. 664, 696 (1970) (Harlan, J., 
concurring) (“The Court must survey meticulously the cir-
cumstances of governmental categories to eliminate, as it 
were, religious gerrymanders.”). Maine's formulation does 
not answer the question in this case; it simply restates it. 
Indeed, were we to accept Maine's argument, our decision 
in Espinoza would be rendered essentially meaningless. By 
Maine's logic, Montana could have obtained the same result 
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Opinion of the Court 
that we held violated the First Amendment simply by rede-
fning its tax credit for sponsors of generally available schol-
arships as limited to “tuition payments for the rough equiva-
lent of a Montana public education”—meaning a secular 
education. But our holding in Espinoza turned on the sub-
stance of free exercise protections, not on the presence or 
absence of magic words. That holding applies fully whether 
the prohibited discrimination is in an express provision like 
§ 2951(2) or in a party's reconceptualization of the public 
beneft. 
Maine may provide a strictly secular education in its public 
schools. But BCS and Temple Academy—like numerous 
other recipients of Maine tuition assistance payments—are 
not public schools. In order to provide an education to chil-
dren who live in certain parts of its far-fung State, Maine 
has decided not to operate schools of its own, but instead to 
offer tuition assistance that parents may direct to the public 
or private schools of their choice. Maine's administration of 
that beneft is subject to the free exercise principles govern-
ing any such public beneft program—including the prohibi-
tion on denying the beneft based on a recipient's religious 
exercise. 
The dissents are wrong to say that under our decision 
today Maine “must” fund religious education. Post, at 795 
(Breyer, J., dissenting). Maine chose to allow some par-
ents to direct state tuition payments to private schools; that 
decision was not “forced upon” it. Post, at 809 (Sotomayor, 
J., dissenting). The State retains a number of options: it 
could expand the reach of its public school system, increase 
the availability of transportation, provide some combination 
of tutoring, remote learning, and partial attendance, or even 
operate boarding schools of its own. As we held in Es-
pinoza, a “State need not subsidize private education. But 
once a State decides to do so, it cannot disqualify some pri-
vate schools solely because they are religious.” 591 U. S., 
at –––. 
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B 
The Court of Appeals also attempted to distinguish this 
case from Trinity Lutheran and Espinoza on the ground 
that the funding restrictions in those cases were “solely 
status-based religious discrimination,” while the challenged 
provision here “imposes a use-based restriction.” 979 F. 3d, 
at 35, 37–38. Justice Breyer makes the same argument. 
Post, at 796–797, 801–802 (dissenting opinion). 
In Trinity Lutheran, the Missouri Constitution banned 
the use of public funds in aid of “any church, sect or denomi-
nation of religion.” 582 U. S., at 455. We noted that the 
case involved “express discrimination based on religious 
identity,” which was suffcient unto the day in deciding it, 
and that our opinion did “not address religious uses of fund-
ing.” Id., at 465, n. 3 (plurality opinion). 
So too in Espinoza, the discrimination at issue was de-
scribed by the Montana Supreme Court as a prohibition on 
aiding “schools controlled by churches,” and we analyzed the 
issue in terms of “religious status and not religious use.” 
591 U. S., at –––. Foreshadowing Maine's argument here, 
Montana argued that its case was different from Trinity Lu-
theran's because it involved not playground resurfacing, but 
general funds that “could be used for religious ends by some 
recipients, particularly schools that believe faith should `per-
meate[ ]' everything they do.” Id., at –––. We explained, 
however, that the strict scrutiny triggered by status-based 
discrimination could not be avoided by arguing that “one of 
its goals or effects [was] preventing religious organizations 
from putting aid to religious uses.” Ibid. (emphasis added). 
And we noted that nothing in our analysis was “meant to 
suggest that we agree[d] with [Montana] that some lesser 
degree of scrutiny applies to discrimination against religious 
uses of government aid.” Id., at –––. 
Maine's argument, however—along with the decision 
below and Justice Breyer 's dissent—is premised on pre-
cisely such a distinction. See Brief for Respondent 44 
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Opinion of the Court 
(“Maine has not broadly excluded private schools simply be-
cause they are affliated with or controlled by a religious 
organization. Rather, a school is excluded only if it pro-
motes a particular faith and presents academic material 
through the lens of that faith.”); 979 F. 3d, at 40 (Maine provi-
sion “does not bar schools from receiving funding simply 
based on their religious identity” but instead “based on the 
religious use that they would make of it in instructing chil-
dren.”); post, at 797 (Breyer , J., dissenting) (“[U]nlike the 
circumstances present in Trinity Lutheran and Espinoza, it 
is religious activity, not religious labels, that lies at the heart 
of this case.”). 
That premise, however, misreads our precedents. In 
Trinity Lutheran and Espinoza, we held that the Free Exer-
cise Clause forbids discrimination on the basis of religious 
status. But those decisions never suggested that use-based 
discrimination is any less offensive to the Free Exercise 
Clause. This case illustrates why. “[E]ducating young peo-
ple in their faith, inculcating its teachings, and training them 
to live their faith are responsibilities that lie at the very core 
of the mission of a private religious school.” Our Lady of 
Guadalupe School v. Morrissey-Berru, 591 U. S. –––, ––– 
(2020); see also Hosanna-Tabor Evangelical Lutheran 
Church and School v. EEOC, 565 U. S. 171, 192 (2012). 
Any attempt to give effect to such a distinction by scruti-
nizing whether and how a religious school pursues its educa-
tional mission would also raise serious concerns about state 
entanglement with religion and denominational favoritism. 
See Our Lady, 591 U. S., at –––; Larson v. Valente, 456 U. S. 
228, 244 (1982). Indeed, Maine concedes that the Depart-
ment barely engages in any such scrutiny when enforcing 
the “nonsectarian” requirement. See Brief for Respondent 
5 (asserting that there will be no need to probe private 
schools' uses of tuition assistance funds because “schools self-
identify as nonsectarian” under the program and the need for 
any further questioning is “extremely rare”). That suggests

788 CARSON v. MAKIN 
Opinion of the Court 
that any status-use distinction lacks a meaningful application 
not only in theory, but in practice as well. In short, the 
prohibition on status-based discrimination under the Free 
Exercise Clause is not a permission to engage in use-based 
discrimination. 
Maine and the dissents invoke Locke v. Davey, 540 U. S. 
712 (2004), in support of the argument that the State may 
preclude parents from designating a religious school to re-
ceive tuition assistance payments. In that case, Washington 
had established a scholarship fund to assist academically 
gifted students with postsecondary education expenses. 
But the program excluded one particular use of the scholar-
ship funds: the “essentially religious endeavor” of pursuing 
a degree designed to “train[ ] a minister to lead a congrega-
tion.” Id., at 721; Espinoza, 591 U. S., at –––. We upheld 
that restriction against a free exercise challenge, reasoning 
that the State had “merely chosen not to fund a distinct cate-
gory of instruction.” Locke, 540 U. S., at 721. 
Our opinions in Trinity Lutheran and Espinoza, however, 
have already explained why Locke can be of no help to Maine 
here. Both precedents emphasized, as did Locke itself, that 
the funding in Locke was intended to be used “to prepare for 
the ministry.” Trinity Lutheran, 582 U. S., at 464; see also 
Espinoza, 591 U. S., at –––; Locke, 540 U. S., at 725. Funds 
could be and were used for theology courses; only pursuing 
a “vocational religious” degree was excluded. Ibid.; see 
also Trinity Lutheran, 582 U. S., at 464–465 (explaining nar-
row reach of Locke ); Espinoza , 591 U. S., at ––– – ––– 
(same). 
Locke's reasoning expressly turned on what it identifed 
as the “historic and substantial state interest” against using 
“taxpayer funds to support church leaders.” 540 U. S., at 
722, 725. But as we explained at length in Espinoza, “it is 
clear that there is no `historic and substantial' tradition 
against aiding [private religious] schools comparable to the 
tradition against state-supported clergy invoked by Locke.” 
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Breyer, J., dissenting 
591 U. S., at –––. Locke cannot be read beyond its narrow 
focus on vocational religious degrees to generally authorize 
the State to exclude religious persons from the enjoyment of 
public benefts on the basis of their anticipated religious use 
of the benefts. 
* * * 
Maine's “nonsectarian” requirement for its otherwise gen-
erally available tuition assistance payments violates the Free 
Exercise Clause of the First Amendment. Regardless of 
how the beneft and restriction are described, the program 
operates to identify and exclude otherwise eligible schools 
on the basis of their religious exercise. The judgment of the 
Court of Appeals is reversed, and the case is remanded for 
further proceedings consistent with this opinion. 
It is so ordered. 
Justice Breyer , with whom Justice Kagan joins, and 
with whom Justice Sotomayor joins except as to Part I– 
B, dissenting. 
The First Amendment begins by forbidding the govern-
ment from “mak[ing] [any] law respecting an establishment 
of religion.” It next forbids them to make any law “prohib-
iting the free exercise thereof.” The Court today pays al-
most no attention to the words in the frst Clause while giv-
ing almost exclusive attention to the words in the second. 
The majority also fails to recognize the “ `play in the joints' ” 
between the two Clauses. See Trinity Lutheran Church of 
Columbia, Inc. v. Comer , 582 U. S. 449, 458 (2017). That 
“play” gives States some degree of legislative leeway. It 
sometimes allows a State to further antiestablishment inter-
ests by withholding aid from religious institutions without 
violating the Constitution's protections for the free exercise 
of religion. In my view, Maine's nonsectarian requirement 
falls squarely within the scope of that constitutional leeway. 
I respectfully dissent. 
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790 CARSON v. MAKIN 
Breyer, J., dissenting 
I 
A 
The First Amendment's two Religion Clauses together 
provide that the government “shall make no law respecting 
an establishment of religion, or prohibiting the free exercise 
thereof.” Each Clause, linguistically speaking, is “cast in 
absolute terms.” Walz v. Tax Comm'n of City of New York, 
397 U. S. 664, 668 (1970). The frst Clause, the Establish-
ment Clause, seems to bar all government “sponsorship, f-
nancial support, [or] active involvement . . . in religious activ-
ity,” while the second Clause, the Free Exercise Clause, 
seems to bar all “governmental restraint on religious prac-
tice.” Id., at 668, 670. The apparently absolutist nature of 
these two prohibitions means that either Clause, “if ex-
panded to a logical extreme, would tend to clash with the 
other.” Id., at 668–669. Because of this, we have said, the 
two Clauses “are frequently in tension,” Locke v. Davey, 
540 U. S. 712, 718 (2004), and “often exert conficting pres-
sures” on government action, Cutter v. Wilkinson, 544 U. S. 
709, 719 (2005). 
On the one hand, the Free Exercise Clause “ `protect[s] re-
ligious observers against unequal treatment.' ” Trinity Lu-
theran, 582 U. S., at 458 (quoting Church of Lukumi Babalu 
Aye, Inc. v. Hialeah, 508 U. S. 520, 542 (1993); alteration in 
original). We have said that, in the education context, this 
means that States generally cannot “ba[r] religious schools 
from public benefts solely because of the religious character 
of the schools.” Espinoza v. Montana Dept. of Revenue , 
591 U. S. –––, ––– (2020); see Trinity Lutheran, 582 U. S., 
at 462–463. 
On the other hand, the Establishment Clause “commands 
a separation of church and state.” Cutter, 544 U. S., at 719. 
A State cannot act to “aid one religion, aid all religions, or 
prefer one religion over another.” Everson v. Board of Ed. 
of Ewing , 330 U. S. 1, 15 (1947). This means that a State 
cannot use “its public school system to aid any or all religious 
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Breyer, J., dissenting 
faiths or sects in the dissemination of their doctrines and 
ideals.” Illinois ex rel. McCollum v. Board of Ed. of School 
Dist. No. 71, Champaign Cty., 333 U. S. 203, 211 (1948). Nor 
may a State “adopt programs or practices in its public 
schools . . . which `aid or oppose' any religion.” Epperson v. 
Arkansas, 393 U. S. 97, 106 (1968). “This prohibition,” we 
have cautioned, “is absolute.” Ibid. See, e. g., McCollum, 
333 U. S. 203 (no weekly religious teachings in public 
schools); Engel v. Vitale, 370 U. S. 421 (1962) (no prayers in 
public schools); School D ist. of Abington Township v. 
Schempp, 374 U. S. 203 (1963) (no Bible readings in public 
schools); Epperson, 393 U. S. 97 (no religiously tailored cur-
riculum in public schools); Wallace v. Jaffree, 472 U. S. 38 
(1985) (no period of silence for meditation or prayer in public 
schools); Lee v. Weisman, 505 U. S. 577 (1992) (no prayers 
during public school graduations); Santa Fe Independent 
School Dist. v. Doe, 530 U. S. 290 (2000) (no prayers during 
public school football games). 
Although the Religion Clauses are, in practice, often in 
tension, they nonetheless “express complementary values.” 
Cutter, 544 U. S., at 719. Together they attempt to chart a 
“course of constitutional neutrality” with respect to govern-
ment and religion. Walz, 397 U. S., at 669. They were 
written to help create an American Nation free of the reli-
gious confict that had long plagued European nations with 
“governmentally established religion[s].” Engel, 370 U. S., 
at 431. Through the Clauses, the Framers sought to avoid 
the “anguish, hardship and bitter strife” that resulted from 
the “union of Church and State” in those countries. Id., at 
429; see also Committee for Public Ed. & Religious Liberty 
v. Nyquist, 413 U. S. 756, 795–796 (1973). 
The Religion Clauses thus created a compromise in the 
form of religious freedom. They aspired to create a “benev-
olent neutrality”—one which would “permit religious exer-
cise to exist without sponsorship and without interference.” 
Walz, 397 U. S., at 669. “[T]he basic purpose of these provi-
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792 CARSON v. MAKIN 
Breyer, J., dissenting 
sions” was “to insure that no religion be sponsored or fa-
vored, none commanded, and none inhibited.” Ibid. This 
religious freedom in effect meant that people “were entitled 
to worship God in their own way and to teach their children” 
in that way. C. Radcliffe, The Law & Its Compass 71 (1960). 
We have historically interpreted the Religion Clauses with 
these basic principles in mind. See, e. g., Nyquist, 413 U. S., 
at 771–772, 794–796; Walz, 397 U. S., at 668–670; Engel, 370 
U. S., at 429–432. 
And in applying these Clauses, we have often said that 
“there is room for play in the joints” between them. Walz, 
397 U. S., at 669; see, e. g., Norwood v. Harrison, 413 U. S. 
455, 469 (1973); Cutter, 544 U. S., at 719; Locke, 540 U. S., at 
718–719; Trinity Lutheran, 582 U. S., at 458; Espinoza, 591 
U. S., at –––. This doctrine refects the fact that it may be 
diffcult to determine in any particular case whether the 
Free Exercise Clause requires a State to fund the activities 
of a religious institution, or whether the Establishment 
Clause prohibits the State from doing so. Rather than 
attempting to draw a highly reticulated and complex free-
exercise/establishment line that varies based on the specifc 
circumstances of each state-funded program, we have pro-
vided general interpretive principles that apply uniformly in 
all Religion Clause cases. At the same time, we have made 
clear that States enjoy a degree of freedom to navigate the 
Clauses' competing prohibitions. See, e. g., Cutter, 544 U. S., 
at 713, 719–720. This includes choosing not to fund certain 
religious activity where States have strong, establishment-
related reasons for not doing so. See, e. g., Locke, 540 U. S., 
at 719–722. And, States have freedom to make this choice 
even when the Establishment Clause does not itself prohibit 
the State from funding that activity. Id., at 719 (“[T]here 
are some state actions permitted by the Establishment 
Clause but not required by the Free Exercise Clause”). The 
Court today nowhere mentions, and I fear effectively aban-
dons, this longstanding doctrine. 
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Breyer, J., dissenting 
B 
I have previously discussed my views of the relationship 
between the Religion Clauses and how I believe these 
Clauses should be interpreted to advance their goal of avoid-
ing religious strife. See, e. g. , Espinoza , 591 U. S., at 
––– – ––– (dissenting opinion); Van Orden v. Perry, 545 
U. S. 677, 698–705 (2005) (opinion concurring in judgment); 
Zelman v. Simmons-Harris, 536 U. S. 639, 717–729 (2002) 
(dissenting opinion). Here I simply note the increased risk 
of religiously based social confict when government pro-
motes religion in its public school system. “[T]he prescrip-
tion of prayer and Bible reading in the public schools, during 
and as part of the curricular day, involving young impres-
sionable children whose school attendance is statutorily com-
pelled,” can “give rise to those very divisive infuences and 
inhibitions of freedom which both religion clauses of the 
First Amendment” sought to prevent. Schempp, 374 U. S., 
at 307 (Goldberg, J., concurring). 
This potential for religious strife is still with us. We are 
today a Nation with well over 100 different religious groups, 
from Free Will Baptist to African Methodist, Buddhist to 
Humanist. See Pew Research Center, America's Changing 
Religious Landscape 21 (May 12, 2015). People in our coun-
try adhere to a vast array of beliefs, ideals, and philosophies. 
And with greater religious diversity comes greater risk of 
religiously based strife, confict, and social division. The 
Religion Clauses were written in part to help avoid that dis-
union. As Thomas Jefferson, one of the leading drafters and 
proponents of those Clauses, wrote, “ `to compel a man to 
furnish contributions of money for the propagation of opin-
ions which he disbelieves, is sinful and tyrannical.' ” Ever-
son , 330 U. S., at 13. And as James Madison, another 
drafter and proponent, said, compelled taxpayer sponsorship 
of religion “is itself a signal of persecution,” which “will de-
stroy that moderation and harmony which the forbearance 
of our laws to intermeddle with Religion, has produced 
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794 CARSON v. MAKIN 
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amongst its several sects.” Id., at 68–69 (appendix to dis-
senting opinion of Rutledge, J.). To interpret the Clauses 
with these concerns in mind may help to further their origi-
nal purpose of avoiding religious-based division. 
I have also previously explained why I believe that a 
“rigid, bright-line” approach to the Religion Clauses—an ap-
proach without any leeway or “play in the joints”—will too 
often work against the Clauses' underlying purposes. Es-
pinoza, 591 U. S., at ––– (dissenting opinion); see also Van 
Orden, 545 U. S., at 669–700 (opinion concurring in judg-
ment). “[G]overnment benefts come in many shapes and 
sizes.” Espinoza , 591 U. S., at ––– (dissenting opinion). 
Not all state-funded programs that have religious restric-
tions carry the same risk of creating social division and con-
fict. In my view, that risk can best be understood by con-
sidering the particular beneft at issue, along with the 
reasons for the particular religious restriction at issue. See 
ibid.; Trinity Lutheran, 582 U. S., at 470–471 (Breyer, J., 
concurring in judgment). Recognition that States enjoy a 
degree of constitutional leeway allows States to enact laws 
sensitive to local circumstances while also allowing this 
Court to consider those circumstances in light of the basic 
values underlying the Religion Clauses. 
In a word, to interpret the two Clauses as if they were 
joined at the hip will work against their basic purpose: to 
allow for an American society with practitioners of over 100 
different religions, and those who do not practice religion at 
all, to live together without serious risk of religion-based 
social divisions. 
II 
The majority believes that the principles set forth in this 
Court's earlier cases easily resolve this case. But they do 
not. 
We have previously found, as the majority points out, that 
“a neutral beneft program in which public funds fow to reli-
gious organizations through the independent choices of pri-
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vate beneft recipients does not offend the Establishment 
Clause.” Ante, at 781 (citing Zelman, 536 U. S., at 652– 
653). We have thus concluded that a State may, consistent 
with the Establishment Clause, provide funding to religious 
schools through a general public funding program if the “gov-
ernment aid . . . reach[es] religious institutions only by way 
of the deliberate choices of . . . individual [aid] recipients.” 
Id., at 652. 
But the key word is “may.” We have never previously 
held what the Court holds today, namely, that a State must 
(not may) use state funds to pay for religious education as 
part of a tuition program designed to ensure the provision 
of free statewide public school education. 
What happens once “may” becomes “must”? Does that 
transformation mean that a school district that pays for pub-
lic schools must pay equivalent funds to parents who wish to 
send their children to religious schools? Does it mean that 
school districts that give vouchers for use at charter schools 
must pay equivalent funds to parents who wish to give their 
children a religious education? What other social benefts 
are there the State's provision of which means—under the 
majority's interpretation of the Free Exercise Clause—that 
the State must pay parents for the religious equivalent of 
the secular beneft provided? The concept of “play in the 
joints” means that courts need not, and should not, answer 
with “must” these questions that can more appropriately be 
answered with “may.” 
The majority also asserts that “[t]he `unremarkable' princi-
ples applied in Trinity Lutheran and Espinoza suffce to re-
solve this case.” Ante, at 780. Not so. The state-funded 
program at issue in Trinity Lutheran provided payment for 
resurfacing school playgrounds to make them safer for chil-
dren. Any Establishment Clause concerns arising from pro-
viding money to religious schools for the creation of safer 
play yards are readily distinguishable from those raised by 
providing money to religious schools through the program at

796 CARSON v. MAKIN 
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issue here—a tuition program designed to ensure that all 
children receive their constitutionally guaranteed right to a 
free public education. After all, cities and States normally 
pay for police forces, fre protection, paved streets, municipal 
transport, and hosts of other services that beneft churches 
as well as secular organizations. But paying the salary of a 
religious teacher as part of a public school tuition program 
is a different matter. 
In addition, schools were excluded from the playground 
resurfacing program at issue in Trinity Lutheran because of 
the mere fact that they were “owned or controlled by a 
church, sect, or other religious entity.” 582 U. S., at 455. 
Schools were thus disqualifed from receiving playground 
funds “solely because of their religious character,” not be-
cause of the “religious uses of [the] funding” they would re-
ceive. Id., at 462, 465, n. 3. Here, by contrast, a school's 
“ `affliation or association with a church or religious insti-
tution . . . is not dispositive' ” of its ability to receive 
tuition funds. 979 F. 3d 21, 38 (CA1 2020) (quoting then-
commissioner of Maine's Department of Education). In-
stead, Maine chooses not to fund only those schools that 
“ `promot[e] the faith or belief system with which [the schools 
are] associated and/or presen[t] the [academic] material 
taught through the lens of this faith' ”—i. e., schools that will 
use public money for religious purposes. Ibid. Maine thus 
excludes schools from its tuition program not because of the 
schools' religious character but because the schools will use 
the funds to teach and promote religious ideals. 
For similar reasons, Espinoza does not resolve the present 
case. In Espinoza, Montana created “a scholarship program 
for students attending private schools.” 591 U. S., at –––. 
But the State prohibited families from using the scholarship 
at any private school “ `owned or controlled in whole or in 
part by any church, religious sect, or denomination.' ” Id., 
at ––– (quoting Mont. Admin. Rule § 42.4.802(1)(a) (2015)). 
As in Trinity Lutheran, Montana denied funds to schools 
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based “expressly on religious status and not religious use”; 
“[t]o be eligible” for scholarship funds, a school had to “di-
vorce itself from any religious control or affliation.” 591 
U. S. at ––– – –––. Here, again, Maine denies tuition money 
to schools not because of their religious affliation, but be-
cause they will use state funds to promote religious views. 
These distinctions are important. The very point of the 
Establishment Clause is to prevent the government from 
sponsoring religious activity itself, thereby favoring one reli-
gion over another or favoring religion over nonreligion. 
See Engel, 370 U. S., at 430 (“Under [the Establishment 
Clause] . . . government in this country, be it state or federal, 
is without power to prescribe by law . . . any program of 
governmentally sponsored religious activity”); Walz, 397 
U. S., at 668 (“[F]or the men who wrote the Religion Clauses 
. . . the `establishment' of a religion connoted . . . [any] active 
involvement of the sovereign in religious activity”); Everson, 
330 U. S., at 15 (States may not “pass laws which aid one 
religion, aid all religions, or prefer one religion over an-
other”). State funding of religious activity risks the very 
social confict based upon religion that the Religion Clauses 
were designed to prevent. And, unlike the circumstances 
present in Trinity Lutheran and Espinoza, it is religious 
activity, not religious labels, that lies at the heart of this 
case. 
III 
A 
I turn now to consider the Maine program at issue here. 
Maine's Constitution guarantees Maine's children a free pub-
lic education by requiring that all towns provide “for the 
support and maintenance of public schools.” Art. VIII, pt. 
1, § 1; see also Me. Rev. Stat. Ann., Tit. 20–A, § 2(1) (2008). 
Because of the State's rural geography and dispersed popula-
tion, however, over half of Maine's school districts do not 
operate public secondary schools. App. 70. To fulfll its

798 CARSON v. MAKIN 
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constitutional promise, Maine created a program that pro-
vides some parents in these districts with a monetary grant 
to help them educate their children “at the public school or 
the approved private school of the parent's choice.” Me. 
Rev. Stat. Ann., Tit. 20–A, § 5204(4) (Cum. Supp. 2021). The 
program's “function is limited to authorizing the provision of 
tuition subsidies to the parents of children who live within 
school [districts] that simply do not have the resources to 
operate a public school system, and whose children would 
otherwise not be given an opportunity to receive a free pub-
lic education.” Hallissey v. School Administrative Dist. 
No. 77, 2000 ME 143, ¶16, 755 A. 2d 1068, 1073. 
Under Maine law, an “approved” private school must be 
“nonsectarian.” § 2951(2). A school fails to meet that re-
quirement (and is deemed “sectarian”) only if it is both (1) 
“ `associated with a particular faith or belief system' ” and 
also (2) “ `promotes the faith or belief system with which it 
is associated and/or presents the [academic] material taught 
through the lens of this faith.' ” 979 F. 3d, at 38 (quot-
ing Maine's then-education commissioner). To determine 
whether a school is sectarian, the “ `focus is on what the 
school teaches through its curriculum and related activities, 
and how the material is presented.' ” Ibid. (emphasis de-
leted). “ `[A]ffliation or association with a church or reli-
gious institution . . . is not dispositive' ” of sectarian status. 
Ibid. 
The two private religious schools at issue here satisfy both 
of these criteria. They are affliated with a church or reli-
gious organization. See App. 80, 91. And they also teach 
students to accept particular religious beliefs and to engage 
in particular religious practices. 
The frst school, Bangor Christian, has “educational objec-
tives” that include “ `lead[ing] each unsaved student to trust 
Christ as his/her personal savior and then to follow Christ 
as Lord of his/her life,' ” and “ `develop[ing] within each stu-
dent a Christian world view and Christian philosophy of 
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life.' ” Id., at 84. Bangor Christian “does not believe there 
is any way to separate the religious instruction from the aca-
demic instruction.” Id., at 85. Academic instruction and 
religious instruction are thus “completely intertwined.” 
Ibid. Bangor Christian teaches in its social studies class, 
for example, “ `that God has ordained evangelism.' ” Id., at 
87. And in science class, students learn that atmospheric 
layers “ `are evidence of God's good design.' ” Id., at 89. 
The second school, Temple Academy, similarly promotes 
religion through academics. Its “educational philosophy `is 
based on a thoroughly Christian and Biblical world view.' ” 
Id., at 92. The school's “objectives” include “ `foster[ing] 
within each student an attitude of love and reverence of the 
Bible as the infallible, inerrant, and authoritative Word of 
God.' ” Ibid. And the school's “ `academic growth' objec-
tives” include “ `provid[ing] a sound academic education in 
which the subjec[t] areas are taught from a Christian point 
of view,' ” and “ `help[ing] every student develop a truly 
Christian world view by integrating studies with the truths 
of Scripture.' ” Id., at 93. Like Bangor Christian, Temple 
“provides a `biblically-integrated education,' which means 
that the Bible is used in every subject that is taught.” Id., 
at 96. In mathematics classes, for example, students learn 
that “a creator designed the universe such that `one plus one 
is always going to be two.' ” Ibid. 
The differences between this kind of education and a 
purely civic, public education are important. “The religious 
education and formation of students is the very reason for 
the existence of most private religious schools.” Our Lady 
of Guadalupe School v. Morrissey-Berru, 591 U. S. –––, ––– 
(2020). “[E]ducating young people in their faith, inculcating 
its teachings, and training them to live their faith,” we have 
said, “are responsibilities that lie at the very core of the mis-
sion of a private religious school.” Id., at –––. Indeed, we 
have recognized that the “connection that religious institu-
tions draw between their central purpose and educating the 
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young in the faith” is so “close” that teachers employed at 
such schools act as “ministers” for purposes of the First 
Amendment. Id. , at –––, –––; see also Hosanna-Tabor 
Evangelical Lutheran Church and School v. EEOC, 565 
U. S. 171 (2012). 
By contrast, public schools, including those in Maine, seek 
frst and foremost to provide a primarily civic education. 
We have said that, in doing so, they comprise “a most vital 
civic institution for the preservation of a democratic system 
of government, and . . . the primary vehicle for transmitting 
the values on which our society rests.” Plyler v. Doe, 457 
U. S. 202, 221 (1982) (citation and internal quotation marks 
omitted). To play that role effectively, public schools are re-
ligiously neutral, neither disparaging nor promoting any one 
particular system of religious beliefs. We accordingly have, 
as explained above, consistently required public school edu-
cation to be free from religious affliation or indoctrination. 
Cf. Edwards v. Aguillard, 482 U. S. 578, 583–584 (1987) 
(“The Court has been particularly vigilant in monitoring 
compliance with the Establishment Clause in elementary and 
secondary [public] schools”). 
Maine legislators who endorsed the State's nonsectarian 
requirement recognized these differences between public 
and religious education. They did not want Maine taxpay-
ers to fnance, through a tuition program designed to ensure 
the provision of free public education, schools that would use 
state money for teaching religious practices. See, e. g., App. 
104 (Maine representative stating that “[f]rom a public policy 
position, we must believe that a religiously neutral classroom 
is the best if funded by public dollars”); id., at 106 (Maine 
senator asserting that the State's “limited [tax] dollars for 
schools” should be spent on those “that are non-religious and 
that are neutral on religion”). Underlying these views is 
the belief that the Establishment Clause seeks government 
neutrality. And the legislators thought that government 
payment for this kind of religious education would be anti-
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thetical to the religiously neutral education that the Estab-
lishment Clause requires in public schools. Cf. Epperson, 
393 U. S., at 106; McCollum, 333 U. S., at 211. Maine's non-
sectarian requirement, they believed, furthered the State's 
antiestablishment interests in not promoting religion in its 
public school system; the requirement prevented public 
funds—funds allocated to ensure that all children receive 
their constitutional right to a free public education—from 
being given to schools that would use the funds to promote 
religion. 
In the majority's view, the fact that private individuals, 
not Maine itself, choose to spend the State's money on reli-
gious education saves Maine's program from Establishment 
Clause condemnation. But that fact, as I have said, simply 
permits Maine to route funds to religious schools. See, e. g., 
Zelman, 536 U. S., at 652. It does not require Maine to 
spend its money in that way. That is because, as explained 
above, this Court has long followed a legal doctrine that 
gives States fexibility to navigate the tension between the 
two Religion Clauses. Supra, at 792. This doctrine “rec-
ognize[s] that there is `play in the joints' between what the 
Establishment Clause permits and the Free Exercise Clause 
compels.” Trinity Lutheran, 582 U. S., at 458 (quoting 
Locke, 540 U. S., at 718). This wiggle-room means that 
“[t]he course of constitutional neutrality in this area cannot 
be an absolutely straight line.” Walz, 397 U. S., at 669. 
And in walking this line of government neutrality, States 
must have “some space for legislative action neither com-
pelled by the Free Exercise Clause nor prohibited by the 
Establishment Clause,” Cutter, 544 U. S., at 719, in which 
they can navigate the tension created by the Clauses 
and consider their own interests in light of the Clauses' 
competing prohibitions. See, e. g. , Walz , 397 U. S., at 
669. 
Nothing in our Free Exercise Clause cases compels Maine 
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802 CARSON v. MAKIN 
Breyer, J., dissenting 
to provide a religious education. As explained above, this 
Court's decisions in Trinity Lutheran and Espinoza prohibit 
States from denying aid to religious schools solely because 
of a school's religious status—that is, its affliation with or 
control by a religious organization. Supra, at 795–797. 
But we have never said that the Free Exercise Clause pro-
hibits States from withholding funds because of the religious 
use to which the money will be put. Cf. Trinity Lutheran, 
582 U. S., at 464. To the contrary, we upheld in Locke a 
State's decision to deny public funding to a recipient “be-
cause of what he proposed to do” with the money, when what 
he proposed to do was to “use the funds to prepare for the 
ministry.” Trinity Lutheran, 582 U. S., at 464; see also Es-
pinoza, 591 U. S., at ––– (characterizing Locke similarly). 
Maine does not refuse to pay tuition at private schools be-
cause of religious status or affliation. The State only denies 
funding to schools that will use the money to promote reli-
gious beliefs through a religiously integrated education—an 
education that, in Maine's view, is not a replacement for a 
civic-focused public education. See 979 F. 3d, at 38. This 
makes Maine's decision to withhold public funds more akin 
to the state decision that we upheld in Locke, and unlike 
the withholdings that we invalidated in Trinity Lutheran 
and Espinoza. 
The Free Exercise Clause thus does not require Maine to 
fund, through its tuition program, schools that will use public 
money to promote religion. And considering the Establish-
ment Clause concerns underlying the program, Maine's deci-
sion not to fund such schools falls squarely within the play 
in the joints between those two Clauses. Maine has prom-
ised all children within the State the right to receive a free 
public education. In fulflling this promise, Maine endeav-
ors to provide children the religiously neutral education re-
quired in public school systems. And that, in signifcant 
part, refects the State's antiestablishment interests in avoid-
ing spending public money to support what is essentially re-
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ligious activity. The Religion Clauses give Maine the abil-
ity, and fexibility, to make this choice. 
B 
In my view, Maine's nonsectarian requirement is also con-
stitutional because it supports, rather than undermines, the 
Religion Clauses' goal of avoiding religious strife. Forcing 
Maine to fund schools that provide the sort of religiously 
integrated education offered by Bangor Christian and Tem-
ple Academy creates a similar potential for religious strife 
as that raised by promoting religion in public schools. It 
may appear to some that the State favors a particular reli-
gion over others, or favors religion over nonreligion. Mem-
bers of minority religions, with too few adherents to estab-
lish schools, may see injustice in the fact that only those 
belonging to more popular religions can use state money for 
religious education. Taxpayers may be upset at having to 
fnance the propagation of religious beliefs that they do not 
share and with which they disagree. And parents in school 
districts that have a public secondary school may feel indig-
nant that only some families in the State—those families in 
the more rural districts without public schools—have the op-
portunity to give their children a Maine-funded religious 
education. 
Maine legislators who endorsed the State's nonsectarian 
requirement understood this potential for social confict. 
They recognized the important rights that religious schools 
have to create the sort of religiously inspired curriculum that 
Bangor Christian and Temple Academy teach. Legislators 
also recognized that these private schools make religiously 
based enrollment and hiring decisions. Bangor Christian 
and Temple Academy, for example, have admissions policies 
that allow them to deny enrollment to students based on 
gender, gender-identity, sexual orientation, and religion, 
and both schools require their teachers to be Born Again 
Christians. App. 82–83, 89, 93, 98. Legislators did not 
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804 CARSON v. MAKIN 
Breyer, J., dissenting 
want Maine taxpayers to pay for these religiously based 
practices—practices not universally endorsed by all citizens 
of the State—for fear that doing so would cause a signifcant 
number of Maine citizens discomfort or displeasure. See, 
e. g., id., at 101 (Maine representative noting that “private 
religious schools discriminate against citizens of the State of 
Maine,” such as by “not hir[ing] individuals whose beliefs 
are not consistent with the school's religious teachings,” and 
asserting that “it is fundamentally wrong for us to fund” 
such discrimination); id., at 104 (Maine representative stat-
ing that “the people of Maine” should not use “public money” 
to advance “their religious pursuits,” and that “discrimina-
tion in religious institutions” should not be funded “with my 
dollar”); id., at 107 (Maine senator expressing concern that 
“public funds could be used to teach intolerant religious 
views”). The nonsectarian requirement helped avoid this 
confict—the precise kind of social confict that the Religion 
Clauses themselves sought to avoid. 
Maine's nonsectarian requirement also serves to avoid reli-
gious strife between the State and the religious schools. 
Given that Maine is funding the schools as part of its effort 
to ensure that all children receive the basic public education 
to which they are entitled, Maine has an interest in ensuring 
that the education provided at these schools meets certain 
curriculum standards. Religious schools, on the other hand, 
have an interest in teaching a curriculum that advances the 
tenets of their religion. And the schools are of course enti-
tled to teach subjects in the way that best refects their reli-
gious beliefs. But the State may disagree with the particu-
lar manner in which the schools have decided that these 
subjects should be taught. 
This is a situation ripe for confict, as it forces Maine into 
the position of evaluating the adequacy or appropriateness 
of the schools' religiously inspired curriculum. Maine does 
not want this role. As one legislator explained, one of the 
reasons for the nonsectarian requirement was that “[g]ov-
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ernment offcials cannot, and should not, review the religious 
teachings of religious schools.” Ibid. Another legislator 
cautioned that the State would be unable to “reconcile” the 
curriculum of “private religious schools who teach religion 
in the classroom” with Maine “standards . . . that do not 
include any sort of religion in them.” Id., at 102. 
Nor do the schools want Maine in this role. Bangor Chris-
tian asserted that it would only consider accepting public 
funds if it “did not have to make any changes in how it oper-
ates.” Id., at 90. Temple Academy similarly stated that it 
would only accept state money if it had “in writing that the 
school would not have to alter its admissions standards, hir-
ing standards, or curriculum.” Id., at 99. The nonsectarian 
requirement ensures that Maine is not pitted against private 
religious schools in these battles over curriculum or opera-
tions, thereby avoiding the social strife resulting from this 
state-versus-religion confrontation. By invalidating the 
nonsectarian requirement, the majority today subjects the 
State, the schools, and the people of Maine to social confict of 
a kind that they, and the Religion Clauses, sought to prevent. 
I emphasize the problems that may arise out of today's 
decision because they reinforce my belief that the Religion 
Clauses do not require Maine to pay for a religious education 
simply because, in some rural areas, the State will help par-
ents pay for a secular education. After all, the Establish-
ment Clause forbids a State from paying for the practice of 
religion itself. And state neutrality in respect to the teach-
ing of the practice of religion lies at the heart of this Clause. 
See, e. g., Locke, 540 U. S., at 721–722 (noting that there are 
“few areas in which a State's antiestablishment interests 
come more into play” than state funding of ministers who 
will “lead [their] congregation[s]” in “religious endeavor[s]”). 
There is no meaningful difference between a State's payment 
of the salary of a religious minister and the salary of some-
one who will teach the practice of religion to a person's chil-
dren. At bottom, there is almost no area “as central to reli-
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806 CARSON v. MAKIN 
Sotomayor, J., dissenting 
gious belief as the shaping, through primary education, of 
the next generation's minds and spirits.” Zelman, 536 U. S., 
at 725 (Breyer, J., dissenting). The Establishment Clause 
was intended to keep the State out of this area. 
* * * 
Maine wishes to provide children within the State with a 
secular, public education. This wish embodies, in signifcant 
part, the constitutional need to avoid spending public money 
to support what is essentially the teaching and practice of 
religion. That need is reinforced by the fact that we are 
today a Nation of more than 330 million people who ascribe 
to over 100 different religions. In that context, state neu-
trality with respect to religion is particularly important. 
The Religion Clauses give Maine the right to honor that neu-
trality by choosing not to fund religious schools as part of its 
public school tuition program. I believe the majority is 
wrong to hold the contrary. And with respect, I dissent. 
Justice Sotomayor, dissenting. 
This Court continues to dismantle the wall of separation 
between church and state that the Framers fought to build. 
Justice Breyer explains why the Court's analysis falters 
on its own terms, and I join all but Part I–B of his dissent. 
I write separately to add three points. 
First, this Court should not have started down this path 
fve years ago. See Trinity Lutheran Church of Columbia, 
Inc. v. Comer, 582 U. S. 449 (2017). Before Trinity Lu-
theran, it was well established that “both the United States 
and state constitutions embody distinct views” on “the sub-
ject of religion”—“in favor of free exercise, but opposed to 
establishment”—“that fnd no counterpart” with respect to 
other constitutional rights. Locke v. Davey, 540 U. S. 712, 
721 (2004). Because of this tension, the Court recognized 
“ `room for play in the joints' between” the Religion Clauses, 
with “some state actions permitted by the Establishment 
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Sotomayor, J., dissenting 
Clause but not required by the Free Exercise Clause.” Id., 
at 718–719 (quoting Walz v. Tax Comm'n of City of New 
York, 397 U. S. 664, 669 (1970)); see ante, at 792 (Breyer, J., 
dissenting). Using this fexibility, and consistent with a rich 
historical tradition, see Trinity Lutheran, 582 U. S., at 481– 
486 (Sotomayor , J., dissenting), States and the Federal 
Government could decline to fund religious institutions. 
Moreover, the Court for many decades understood the Es-
tablishment Clause to prohibit government from funding re-
ligious exercise.* 
Over time, the Court eroded these principles in certain 
respects. See, e. g., Zelman v. Simmons-Harris, 536 U. S. 
639, 662 (2002) (allowing government funds to fow to reli-
gious schools if private individuals selected the benefting 
schools; the government program was “entirely neutral with 
respect to religion”; and families enjoyed a “genuine choice 
among options public and private, secular and religious”). 
Nevertheless, the space between the Clauses continued to 
afford governments “some room to recognize the unique sta-
tus of religious entities and to single them out on that basis 
for exclusion from otherwise generally applicable laws.” 
Trinity Lutheran , 582 U. S., at 479 ( Sotomayor , J., 
dissenting). 
Trinity Lutheran veered sharply away from that under-
standing. After assuming away an Establishment Clause 
violation, the Court revolutionized Free Exercise doctrine 
by equating a State's decision not to fund a religious organi-
*See, e. g., Everson v. Board of Ed. of Ewing , 330 U. S. 1, 16 (1947) 
(“No tax in any amount, large or small, can be levied to support any reli-
gious activities or institutions . . . ”); Agostini v. Felton, 521 U. S. 203, 
222–223 (1997) (observing that government aid that impermissibly “ad-
vanc[ed] . . . religion” was constitutionally barred); Mitchell v. Helms, 530 
U. S. 793, 840 (2000) (O'Connor, J., concurring in judgment) (“[O]ur deci-
sions provide no precedent for the use of public funds to fnance religious 
activities” (internal quotation marks omitted)); see also Rosenberger v. 
Rector and Visitors of Univ. of Va., 515 U. S. 819, 875–876 (1995) (Souter, 
J., dissenting) (chronicling cases). 
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808 CARSON v. MAKIN 
Sotomayor, J., dissenting 
zation with presumptively unconstitutional discrimination on 
the basis of religious status. See id., at 462–463. A plural-
ity, however, limited the Court's decision to “express dis-
crimination based on religious identity” (i. e., status), not “re-
ligious uses of funding.” Id., at 465, n. 3. In other words, 
a State was barred from withholding funding from a reli-
gious entity “solely because of its religious character,” id., 
at 466 (opinion of the Court), but retained authority to do so 
on the basis that the funding would be put to religious uses. 
Two Terms ago, the Court reprised and extended Trinity 
Lutheran's error to hold that a State could not limit a 
private-school voucher program to secular schools. Espinoza 
v. Montana Dept. of Revenue , 591 U. S. –––, ––– (2020). The 
Court, however, again refrained from extending Trinity Lu-
theran from funding restrictions based on religious status to 
those based on religious uses. Espinoza, 591 U. S., at ––– – 
––– (2020). 
As Justice Breyer explains, see ante, at 796–797, this 
status-use distinction readily distinguishes this case from 
Trinity Lutheran and Espinoza. I warned in Trinity Lu-
theran, however, that the Court's analysis could “be manipu-
lated to call for a similar fate for lines drawn on the basis of 
religious use.” 582 U. S., at 495, n. 14 (dissenting opinion). 
That fear has come to fruition: The Court now holds for the 
frst time that “any status-use distinction” is immaterial in 
both “theory” and “practice.” Ante, at 788. It reaches that 
conclusion by embracing arguments from prior separate 
writings and ignoring decades of precedent affording gov-
ernments fexibility in navigating the tension between the 
Religion Clauses. As a result, in just a few years, the Court 
has upended constitutional doctrine, shifting from a rule that 
permits States to decline to fund religious organizations to 
one that requires States in many circumstances to subsidize 
religious indoctrination with taxpayer dollars. 
Second, the consequences of the Court's rapid transforma-
tion of the Religion Clauses must not be understated. From 
Page Proof Pending Publication

Cite as: 596 U. S. 767 (2022) 809 
Sotomayor, J., dissenting 
a doctrinal perspective, the Court's failure to apply the play-
in-the-joints principle here, see ante, at 801 (Breyer, J., dis-
senting), leaves one to wonder what, if anything, is left of it. 
The Court's increasingly expansive view of the Free Exer-
cise Clause risks swallowing the space between the Religion 
Clauses that once “permit[ted] religious exercise to exist 
without sponsorship and without interference.” Walz, 397 
U. S., at 669. 
From a practical perspective, today's decision directs the 
State of Maine (and, by extension, its taxpaying citizens) to 
subsidize institutions that undisputedly engage in religious 
instruction. See ante, at 798–799 (Breyer , J., dissenting). 
In addition, while purporting to protect against discrimina-
tion of one kind, the Court requires Maine to fund what 
many of its citizens believe to be discrimination of other 
kinds. See ante, at 803–804 (Breyer, J., dissenting) (summa-
rizing Bangor Christian Schools' and Temple Academy's poli-
cies denying enrollment to students based on gender identity, 
sexual orientation, and religion). The upshot is that Maine 
must choose between giving subsidies to its residents or re-
fraining from fnancing religious teaching and practices. 
Finally, the Court's decision is especially perverse because 
the beneft at issue is the public education to which all of 
Maine's children are entitled under the State Constitution. 
As this Court has long recognized, the Establishment Clause 
requires that public education be secular and neutral as to 
religion. See ante, at 790–791, 800 (Breyer , J., dissenting) 
(collecting cases). The Court avoids this framing of Maine's 
beneft because, it says, “Maine has decided not to operate 
schools of its own, but instead to offer tuition assistance that 
parents may direct to the public or private schools of their 
choice.” Ante, at 785. In fact, any such “deci[sion],” ibid., 
was forced upon Maine by “the realities of remote geography 
and low population density,” ante, at 773, which render it 
impracticable for the State to operate its own schools in 
many communities. 
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810 CARSON v. MAKIN 
Sotomayor, J., dissenting 
The Court's analysis does leave some options open to 
Maine. For example, under state law, school administrative 
units (SAUs) that cannot feasibly operate their own schools 
may contract directly with a public school in another SAU, 
or with an approved private school, to educate their stu-
dents. See Me. Rev. Stat. Ann., Tit. 20–A, §§ 2701, 2702 
(2008). I do not understand today's decision to mandate that 
SAUs contract directly with schools that teach religion, 
which would go beyond Zelman's private-choice doctrine and 
blatantly violate the Establishment Clause. Nonetheless, it 
is irrational for this Court to hold that the Free Exercise 
Clause bars Maine from giving money to parents to fund the 
only type of education the State may provide consistent with 
the Establishment Clause: a religiously neutral one. Noth-
ing in the Constitution requires today's result. 
* * * 
What a difference fve years makes. In 2017, I feared that 
the Court was “lead[ing] us . . . to a place where separation 
of church and state is a constitutional slogan, not a constitu-
tional commitment.” Trinity Lutheran, 582 U. S., at 496 
(dissenting opinion). Today, the Court leads us to a place 
where separation of church and state becomes a constitu-
tional violation. If a State cannot offer subsidies to its citi-
zens without being required to fund religious exercise, any 
State that values its historic antiestablishment interests 
more than this Court does will have to curtail the support it 
offers to its citizens. With growing concern for where this 
Court will lead us next, I respectfully dissent. 
Page Proof Pending Publication

Page Proof Pending Publication
Reporter’s Note 
The attached opinion has been revised to refect the usual publication 
and citation style of the United States Reports. The revised pagination 
makes available the offcial United States Reports citation in advance of 
publication. The syllabus has been prepared by the Reporter of Decisions 
for the convenience of the reader and constitutes no part of the opinion of 
the Court. A list of counsel who argued or fled briefs in this case, and 
who were members of the bar of this Court at the time this case was 
argued, has been inserted following the syllabus. Other revisions may 
include adjustments to formatting, captions, citation form, and any errant 
punctuation. The following additional edits were made: 
None

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 596 U. S. Part 2 Pages 767–810 OFFICIAL REPORTS OF THE SUPREME COURT June 21, 2022 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to noti…

• #2

  (a) The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 450. The Court recently applied this principle in the context of two state effor…

• #3

  payments at private schools and specifcally carved out private religious schools from those eligible to receive such funds. Both that program and this one disqualify certain private schools from public funding “solely because they are religious.” 591 U. S., at –––. A law that oper- ates in that manner must be subj…

• #4

  private schools need not even resemble that taught in the Maine public schools. The key manner in which participating private schools are required to resemble Maine public schools, however, is that they must be secular. Maine may provide a strictly secular education in its public schools. But BCS and Temple Acade…

• #5

  enjoyment of public benefts on the basis of their anticipated religious use of the benefts. Pp. 786–789. 979 F. 3d 21, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Breyer, J., fled a dissenting opinion, in which Ka…

• #6

  for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Jordan Seku- low, Colby M. May, Walter M. Weber, and Laura B. Hernandez; for the Americans for Prosperity Foundation et al. by Cynthia Fleming Crawford and Casey Mattox; for the Becket Fund for Religious Liberty by Eric C. Rassbach and Diana Verm Thomson; fo…

• #7

  Charles L. Glenn by Sarah M. Harris; and for Michael W. McConnell by L. Martin Nussbaum and Andrew M. Nussbaum. Briefs of amici curiae urging affrmance were fled for the State of Vermont by Thomas J. Donovan, Jr., Attorney General of Vermont, Ben- jamin D. Battles, Solicitor General, and Rachel E. Smith, Deputy So…

• #8

  Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” The question presented is whether this restriction violates the Free Exercise Clause of the First Amendment. I A Maine's Constitution provides that the State's legislature shall “require . . . the several towns to mak…

• #9

  Schools seeking approval from the Department must meet specifed curricular requirements, such as using English as the language of instruction, offering a course in “Maine his- tory, including the Constitution of Maine . . . and Maine's cultural and ethnic heritage,” and maintaining a student- teacher ratio of not…

• #10

  in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” 979 F. 3d 21, 38 (CA1 2020). “The Department's focus is on what the school teaches through its curriculum and related activities, and how …

• #11

  neither school qualifes as “nonsectarian,” neither is eligible to receive tuition payments under Maine's tuition assistance program. Id., at 80, 90. Absent the “nonsectarian” re- quirement, the Carsons and the Nelsons would have asked their respective SAUs to pay the tuition to send their chil- dren to BCS and Te…

• #12

  would use the funds”—Maine bars BCS and Temple Acad- emy from receiving funding “based on the religious use that they would make of it in instructing children.” 979 F. 3d, at 40. Second, the panel determined that Maine's tuition as- sistance program was distinct from the scholarships at issue in Espinoza because …

• #13

  ing nonproft organizations that installed cushioning play- ground surfaces made from recycled rubber tires. The Missouri Department of Natural Resources maintained an Page Proof Pending Publication Cite as: 596 U. S. 767 (2022) 779 Opinion of the Court express policy of denying such grants to any applicant owned…

• #14

  Opinion of the Court do so, it cannot disqualify some private schools solely because they are religious.” Id., at –––. B The “unremarkable” principles applied in Trinity Lu - theran and Espinoza suffce to resolve this case. Maine of- fers its citizens a beneft: tuition assistance payments for any family whose s…

• #15

  does not offend the Establishment Clause. See Zelman, 536 U. S., at 652–653. Maine's decision to continue excluding re- ligious schools from its tuition assistance program after Zel- man thus promotes stricter separation of church and state than the Federal Constitution requires. See also post, at 792 (Breyer, J.…

• #16

  Espinoza, but on religious “uses” of public funds. 979 F. 3d, at 38–40; see also Brief for Respondent 35. Neither of these formal distinctions suffices to distinguish this case from Trinity Lutheran or Espinoza, or to affect the application of the free exercise principles outlined above. A The First Circuit held…

• #17

  lic schools. For example, Maine public schools must abide by certain “parameters for essential instruction in English language arts; mathematics; science and technology; social studies; career and education development; visual and per- forming arts; health, physical education and wellness; and world languages.” §…

• #18

  manner would be to see “the First Amendment . . . reduced to a simple semantic exercise.” Agency for Int'l Develop- ment v. Alliance for Open Society Int'l, Inc., 570 U. S. 205, 215 (2013) (quoting Legal Services Corporation v. Velazquez, 531 U. S. 533, 547 (2001)); see also Walz v. Tax Comm'n of City of New York…

• #19

  could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own. As we held in Es- pinoza, a “State need not subsidize private education. But once a State dec…

• #20

  cisely such a distinction. See Brief for Respondent 44 Page Proof Pending Publication Page Proof Pending Publication Cite as: 596 U. S. 767 (2022) 787 Opinion of the Court (“Maine has not broadly excluded private schools simply be- cause they are affliated with or controlled by a religious organization. Rather,…

• #21

  prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination. Maine and the dissents invoke Locke v. Davey, 540 U. S. 712 (2004), in support of the argument that the State may preclude parents from designating a religious school to re- ceive …

• #22

  how the beneft and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justic…

• #23

  On the one hand, the Free Exercise Clause “ `protect[s] re- ligious observers against unequal treatment.' ” Trinity Lu- theran, 582 U. S., at 458 (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 542 (1993); alteration in original). We have said that, in the education context, this means that …

• #24

  “governmentally established religion[s].” Engel, 370 U. S., at 431. Through the Clauses, the Framers sought to avoid the “anguish, hardship and bitter strife” that resulted from the “union of Church and State” in those countries. Id., at 429; see also Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U…

• #25

  at 719–722. And, States have freedom to make this choice even when the Establishment Clause does not itself prohibit the State from funding that activity. Id., at 719 (“[T]here are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause”). The Court today nowhere ment…

• #26

  stroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced Page Proof Pending Publication 794 CARSON v. MAKIN Breyer, J., dissenting amongst its several sects.” Id., at 68–69 (appendix to dis- senting opinion of Rutledge, J.). To interpret the Clauses with the…

• #27

  with the Establishment Clause, provide funding to religious schools through a general public funding program if the “gov- ernment aid . . . reach[es] religious institutions only by way of the deliberate choices of . . . individual [aid] recipients.” Id., at 652. But the key word is “may.” We have never previously…

• #28

  resurfacing program at issue in Trinity Lutheran because of the mere fact that they were “owned or controlled by a church, sect, or other religious entity.” 582 U. S., at 455. Schools were thus disqualifed from receiving playground funds “solely because of their religious character,” not be- cause of the “religio…

• #29

  is without power to prescribe by law . . . any program of governmentally sponsored religious activity”); Walz, 397 U. S., at 668 (“[F]or the men who wrote the Religion Clauses . . . the `establishment' of a religion connoted . . . [any] active involvement of the sovereign in religious activity”); Everson, 330 U. …

• #30

  whether a school is sectarian, the “ `focus is on what the school teaches through its curriculum and related activities, and how the material is presented.' ” Ibid. (emphasis de- leted). “ `[A]ffliation or association with a church or reli- gious institution . . . is not dispositive' ” of sectarian status. Ibid. …

• #31

  The differences between this kind of education and a purely civic, public education are important. “The religious education and formation of students is the very reason for the existence of most private religious schools.” Our Lady of Guadalupe School v. Morrissey-Berru, 591 U. S. –––, ––– (2020). “[E]ducating yo…

• #32

  senator asserting that the State's “limited [tax] dollars for schools” should be spent on those “that are non-religious and that are neutral on religion”). Underlying these views is the belief that the Establishment Clause seeks government neutrality. And the legislators thought that government payment for this k…

• #33

  to give tuition aid to private schools that will use the funds 802 CARSON v. MAKIN Breyer, J., dissenting to provide a religious education. As explained above, this Court's decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school's religious stat…

• #34

  In my view, Maine's nonsectarian requirement is also con- stitutional because it supports, rather than undermines, the Religion Clauses' goal of avoiding religious strife. Forcing Maine to fund schools that provide the sort of religiously integrated education offered by Bangor Christian and Tem- ple Academy creat…

• #35

  such discrimination); id., at 104 (Maine representative stat- ing that “the people of Maine” should not use “public money” to advance “their religious pursuits,” and that “discrimina- tion in religious institutions” should not be funded “with my dollar”); id., at 107 (Maine senator expressing concern that “public…

• #36

  requirement ensures that Maine is not pitted against private religious schools in these battles over curriculum or opera- tions, thereby avoiding the social strife resulting from this state-versus-religion confrontation. By invalidating the nonsectarian requirement, the majority today subjects the State, the scho…

• #37

  Justice Sotomayor, dissenting. This Court continues to dismantle the wall of separation between church and state that the Framers fought to build. Justice Breyer explains why the Court's analysis falters on its own terms, and I join all but Part I–B of his dissent. I write separately to add three points. First, …

• #38

  violation, the Court revolutionized Free Exercise doctrine by equating a State's decision not to fund a religious organi- *See, e. g., Everson v. Board of Ed. of Ewing , 330 U. S. 1, 16 (1947) (“No tax in any amount, large or small, can be levied to support any reli- gious activities or institutions . . . ”); Agos…

• #39

  conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording gov- ernments fexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to d…

• #40

  parents may direct to the public or private schools of their choice.” Ante, at 785. In fact, any such “deci[sion],” ibid., was forced upon Maine by “the realities of remote geography and low population density,” ante, at 773, which render it impracticable for the State to operate its own schools in many communiti…

• #41

  the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following ad…