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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.

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Friday, Sep 10, 2021

WASHINGTON – Attorneys with Alliance Defending Freedom and Jones Day, who together represent the Jewish Coalition for Religious Liberty, filed a friend-of-the-court brief Friday with the U.S. Supreme Court in Carson v. Makin, a case in which 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.

“The government cannot discriminate against people of faith who wish to act consistently with that faith in all areas of their lives,” said ADF Vice President of Appellate Advocacy and Senior Counsel John Bursch. “As we argue in our brief filed with the Supreme Court, the lower court’s decision ‘provided a roadmap for states and localities who want to evade [the U.S. Supreme Court’s decision in] Espinoza and to discriminate against religious institutions.’ The Supreme Court should build on their decision in that case and in ADF’s Trinity Lutheran case, both of which made clear that states can’t oust parents and children from a generally available benefit program simply because they choose a religious private school.”

“The drafters of the First Amendment’s Free Exercise Clause designed it to protect not only the right to be religious in some metaphysical sense but also the practical right to participate in religious activity, and that includes a religious curriculum and environment,” Bursch added.

In the Espinoza case, the U.S. Supreme Court upheld Montana’s tuition tax credit program. But in the Carson case, the U.S. Court of Appeals for the First Circuit said that the Supreme Court’s decision in Espinoza does not invalidate Maine’s exclusion of “sectarian” schools from its tuition assistance program, because the program is discriminating based only on religious “use” or conduct, rather than religious “status.” By that, the court meant that Maine is allowed to exclude sectarian schools from its program so long as it only does so if they actually act religious to a sufficient degree, and not if they are merely “religious” in name only.

“The [Supreme] Court should reverse, because that distinction is illusory and would render Espinoza a dead letter…,” the friend-of-the-court brief explains, adding that “the Free Exercise Clause prohibits discrimination on the basis of both belief and action. The Framers drafted the Clause to protect not only the right to be religious but also the practical right to participate in religious activity. Indeed, [as Justice Neil Gorsuch wrote in his concurrence in Espinoza,] ‘[t]he right to be religious without the right to do religious things would hardly amount to a right at all.’ To exclude a religious school from subsidies just because the school acts in accord with its religious beliefs, or incorporates those beliefs into its curriculum, ‘punishe[s] the free exercise of religion.’ Accepting the First Circuit’s status-use distinction would thus put Orthodox Jewish schools to the same unconstitutional choice rejected in Trinity Lutheran.”

Co-counsel from Jones Day are Yaakov M. Roth, Anthony J. Dick, and Meredith Holland Kessler.

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.