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Carson v. Makin

Description:  The state of Maine prohibited families from using funds from a state tuition program, designed for students who don’t have access to a local public school, at private religious schools.


U.S. Supreme Court building
Tuesday, Jun 21, 2022

WASHINGTON – The U.S. Supreme Court ruled Tuesday in Carson v. Makin that the state of Maine cannot exclude students who attend religious schools from a government program in which they are otherwise qualified. Attorneys with Alliance Defending Freedom and Jones Day had argued for that result in a friend-of-the-court brief they filed on behalf of the Jewish Coalition for Religious Liberty.

Maine had prohibited families from using funds from a state tuition program—designed for students who don’t have access to a local public school—at private religious schools that incorporated a curricular faith perspective.

“When the government offers parents school choice, it can’t take away choices that are deemed ‘too religious’ or withhold funds from those who choose religious schools when the state offers those funds to everybody else,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “Today’s decision from the Supreme Court affirms our country’s abiding principle of religious liberty and, importantly, allows Maine parents the freedom to send their children to schools that align with their beliefs.”

The Supreme Court’s decision built upon its previous rulings in Espinoza v. Montana Department of Revenue and Trinity Lutheran Church of Columbia v. Comer, a case in which ADF attorneys successfully argued before the high court that a state may not discriminate against a religious school in awarding grants to improve playground safety.

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause,” the high court concluded, emphasizing that this does not mean that a state “must” fund religious education. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” And this is true no matter whether the state disqualifies a school because of its religious status or because the school integrates religion into its curriculum. “Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism.”

ADF attorneys are currently litigating similar cases involving Vermont officials discriminating against religious schools in E.W. v. French, A.M. v. French, and A.H. v. French. Jones Day attorneys Yaakov M. Roth, Anthony J. Dick, and Meredith Holland Kessler served as co-counsel for the Jewish Coalition for Religious Liberty.

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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ABOUT John Bursch

John Bursch is senior counsel and vice president of appellate advocacy with Alliance Defending Freedom. Bursch has argued 12 U.S. Supreme Court cases and more than 30 state supreme court cases since 2011, and a recent study concluded that among all frequent Supreme Court advocates who did not work for the federal government, he had the 3rd highest success rate for persuading justices to adopt his legal position. Bursch served as solicitor general for the state of Michigan from 2011-2013. He has argued multiple Michigan Supreme Court cases in eight of the last ten terms and has successfully litigated hundreds of matters nationwide, including six with at least $1 billion at stake. As part of his private firm, Bursch Law PLLC, he has represented Fortune 500 companies, foreign and domestic governments, top public officials, and industry associations in high-profile cases, primarily on appeal. He received his J.D. magna cum laude in 1997 from the University of Minnesota Law School and is admitted to practice in numerous federal district and appellate courts, including the U.S. Supreme Court.