SCOTUS watch: Fantasy land, Washington v Washington, and a big win for religious expression in education

SCOTUS watch: Fantasy land, Washington v Washington, and a big win for religious expression in education
AP Photo/Alex Brandon

We didn’t get Dobbs or Bruen today, but we did get a legit headliner decision from the Supreme Court — while shaving another five cases off the backlog. In a closely watched case argued in December, the Supreme Court ruled 6-3 that the state of Maine cannot restrict education reimbursement funds for parents to only “non-sectarian” schools. The case of Carson v Makin involves a peculiar set of facts in which a school district has no secondary schools, but the implications are clear for school vouchers in all contexts.


It’s significant enough to get immediate media attention, including this report from the New York Times’ Adam Liptak:

The Supreme Court ruled on Tuesday that Maine may not exclude religious schools from a state tuition program. The decision, from a court that has grown exceptionally receptive to claims from religious people and groups in a variety of settings, was the latest in a series of rulings requiring the government to aid religious institutions on the same terms as other private organizations.

The vote was 6 to 3, with the court’s three liberal justices in dissent.

The case, Carson v. Makin, No. 20-1088, arose from an unusual program in Maine, which requires rural communities without public secondary schools to arrange for their young residents’ educations in one of two ways. They can sign contracts with nearby public schools, or they can pay tuition at a private school chosen by parents so long as it is, in the words of a state law, “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

Two families in Maine that send or want to send their children to religious schools challenged the law, saying it violated their right to freely exercise their faith.

How many school districts offer nothing past an elementary level education to children? Surprisingly, more than half of Maine’s school administrative units (SAUs) offer no secondary education, even while the state’s constitution requires Maine to deliver a “free” education to every school-age child. To fix this gap, the legislature created a voucher program but set it up so that parents could not apply the reimbursements to religious schools.

If that sounds familiar, it should. The court disposed of similar cases in Trinity Lutheran and Espinoza over the last few years, striking down so-called Blaine Amendments that explicitly disfavored Catholic schools in particular. In this case as well, this was a “neutral benefit program” for parents to use in their choice of schools in the lack of any public education options. And as such, Chief Justice John Roberts wrote, that crosses the line into an infringement on religious expression, especially since the legislature deliberately added this restriction after the program had been in operation for years:


Prior to 1981, parents could also direct the tuition assistance 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 Amendment. We subsequently held, however, that a benefit program under which private citizens “direct government aid to religious schools wholly as a result of their own genuine and independent private choice” does not offend the Establishment 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.

Roberts further writes that the “unremarkable” principles of Trinity Lutheran and Espinoza make this question easy to settle. He also addresses the liberal dissents on this issue at the same moment:

As noted, a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. See Zelman, 536 U. S., at 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. See also post, at 4 (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 1 (SOTOMAYOR, J., dissenting) (same point).

But as we explained in both Trinity Lutheran and Espinoza, such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution . . . ‘cannot qualify as compelling’ in the face of the infringement of free exercise.” Espinoza, 591 U. S., at ___ (slip op., at 18) (quoting Trinity Lutheran, 582 U. S., at ___ (slip op., at 14)); 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 ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.”). JUSTICE BREYER stresses the importance of “government neutrality” when it comes to religious matters, post, at 13, 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 antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit 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 15–16 (opinion of BREYER, J.); post, at 4 (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 characteristics. See supra, at 3


Essentially, a school voucher system that simply returns public funds back to parents for their own choice of education cannot discriminate on the basis of religion. Maine could conceivably forbid the direct payment of tax dollars to religious schools on Establishment Clause grounds, but even that ability is limited in Trinity Lutheran by an equal-treatment issue. Once it sets up a voucher program for parents to manage, especially given a lack of state facilities for education in the case of Maine, the state cannot then discriminate on the basis of religion.

Roberts takes the dissenters to task for their claim that this ruling would somehow force states to fund religious schools:

The dissents are wrong to say that under our decision today Maine “must” fund religious education. Post, at 7 (BREYER, J., dissenting). Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not “forced upon” it. Post, at 4 (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 Espinoza, a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” 591 U. S., at ___ (slip op., at 20).

As Roberts says, this is pretty much a regurgitation of Espinoza. The dissents in this case also echo the Espinoza dissents, with the same three justices falling in the same positions as they did two years agoCarson v Makin may not carve new ground, but it certainly strengthens the precedents of Trinity Lutheran and Espinoza, and may make further challenges less likely.

As for the other four cases, they mostly fall into the quirky category. Justice Stephen Breyer authored a unanimous and brief ruling that will force the state of Washington back to the drawing board in attempting to apply state workers-comp laws to federal employees and contractors. Medicare won a round today after losing one last week in a 7-2 ruling written by Justice Brett Kavanaugh on a case involving dialysis reimbursements resolved mainly on technical ground. Another technical ruling on the All Writs Act got a contentious 5-4 split in which Justice Neil Gorsuch lined up with the liberals in dissent, but in which Roberts ruled that it cannot be used for inmates seeking to develop new evidence without a finding of admissibility.


The other case, US v Taylor, also was technical in nature and hinged on the definition of a “crime of violence” for the purposes of sentencing enhancements. Justin Taylor got another ten years tacked onto his sentence for his participation in an attempted robbery, although Taylor himself committed no act of violence. His partner, however, shot a man in the commission of the robbery, which certainly seems violent enough. However, in a 7-2 opinion, Justice Neil Gorsuch ruled that the Hobbs Act violation alone cannot also at the same time qualify as a “crime of violence” without a specific showing of violence. Gorsuch parses out the problem in the statute:

The elements clause does not ask whether the defendant committed a crime of violence or attempted to commit one. It asks whether the defendant did commit a crime of violence—and it proceeds to define a crime of violence as a felony that includes as an element the use, attempted use, or threatened use of force. If Congress had wanted the elements clause to do the kind of work the government supposes, it could have easily said so. For example, it might have swept in those federal crimes that require as an element “the use or threatened use of force” and those “that constitute an attempt to commit an offense that has such an element.” But that simply is not the law we have.

Justice Clarence Thomas reached back to Lewis Carroll for his dissent on this point:

This holding exemplifies just how this Court’s “categorical approach” has led the Federal Judiciary on a “journey Through the Looking Glass,” during which we have found many “strange things.” L. Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982). Rather than continue this 30-year excursion into the absurd, I would hold Taylor accountable for what he actually did and uphold his conviction. Accordingly, I respectfully dissent. …

Even Alice, having slaked her curiosity, eventually returned from the land beyond the looking glass. It is high time that this Court do the same. In this case, I would begin the trek back by adopting the Davis dissent’s conduct-based approach, reviving §924(c)’s residual clause, and reversing the judgment below. And in future cases, when it comes to interpreting §924(c)’s elements clause, I will carefully consider alternatives to this Court’s atextual and ever-more-absurd categorical approach. For these reasons, I respectfully dissent.


Justice Samuel Alito took a more prosaic approach to his dissent. Robbery involved a threat of violence, either explicit or implicit — and in this case, the crime committed actually did involve violence with a firearm:

The Court holds that this violent (and, indeed, deadly) offense did not constitute a “crime of violence” under the technical definition of that term in §924(c)(3)(A). I agree with JUSTICE THOMAS that our cases involving §924(c)(3)(A) have veered off into fantasy land.1 But if the Court is going to disregard the real world and base its decisions in this area on a strict reading of the text, the “offense” for which Taylor was convicted—attempted Hobbs Act robbery— meets the definition in §924(c)(3)(A). That definition provides that an “offense” qualifies as a “‘crime of violence’” if it is a felony and “has as an element the use, attempted use, or threatened use of physical force against the person . . . of another.”

That certainly seems to be a common-sense approach to it, but as Thomas notes, the court’s precedents have not followed that approach in the past either. This might come up again and again, as it has in the past, so it’s not just entertaining but well worth noting.

Anyway, we are now down to thirteen pending cases and three scheduled opinion-release dates. The next one comes this Thursday, but I still wouldn’t expect Dobbs or Bruen until the end.

Update: I meant to include this in the original version, but I forgot to thank SCOTUSblog for all of their efforts to stage a very informative live blog every decision day. If you don’t want to read the live blog (but you should!), follow along on Twitter with their @SCOTUSblog account.

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