Carson v. Makin

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 2
Pages 767–810
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 21, 2022
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : 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,
pio@supremecourt.gov, of any typographical or other formal errors.

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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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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
pr ivate schools solely because they are relig i ous. ” 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.

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as: 596 U. S. 767 (2022)
769
Syllabus
(c) The First Circuit's attempts to recharacter ize the nature of
Mai
ne'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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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 Br no v i ch of Ar i zona, Ash l ey M o ody of Flor ida, Chr ist o ph e r
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Cite
as: 596 U. S. 767 (2022)
771
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
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
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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. Ol fene; 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.

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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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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 nonsec tar ian school in accordance w ith 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 vi olated the Establishment Clause of the First
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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 “ nonsec t ar ian” requirement for par ticipati on 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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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.
Petiti oners Troy and Angela Nelson live in Pa ler mo,
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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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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Opinion of the Court
striction at issue and the nature of the school aid program of
wh
ich 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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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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do so, it cannot disqualify some private schools solely because
they
are religious.” Id., at –––.
B
The “unremarkable” principles applied in Tr ini ty 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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Opinion of the Court
that targets religious conduct for distinctive treatment . . .
w
ill 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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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 ch i ldren at rel ig i ous
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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that we held violated the First Amendment simply by rede-
f
ning 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 arg ument, however—a long w ith the decisi on
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
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788 CARSON
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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
g if ted 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 L ocke); Esp inoza, 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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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
idea
ls.” 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 rel ig i ous teach i ngs i n publ ic
schools); Engel v. Vitale, 370 U. S. 421 (1962) (no prayers in
publ ic schools); Scho o l D ist. o f Ab ing t o n To w n sh ip 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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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 relig ious 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 Rel ig i on Clauses and how I believe these
Clauses should be interpreted to advance their goal of avoid-
i ng rel ig i ous str i fe. See, e. g., Esp inoza, 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-
so n, 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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amongst its several sects.” Id., at 68–69 (appendix to dis-
senti
ng 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
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796 CARSON
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issue here—a tuition program designed to ensure that all
ch
ildren 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-
tuti on . . . is not dispositive' ” of its abi l ity 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
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constitutional promise, Maine created a program that pro-
v
ides 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-
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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 a lso Hosann a-Tabo r
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-
l
ishment 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 nav igate the tensi on created by the Clauses
and consider their own interests in light of the Clauses'
competi ng proh ibiti ons. See, e. g., Wa lz, 397 U. S., at
669.
Nothing in our Free Exercise Clause cases compels Maine
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802 CARSON
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to provide a religious education. As explained above, this
Cour
t'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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want Maine taxpayers to pay for these religiously based
prac
tices—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
teach
ings 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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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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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.”
Tr in i ty Lu th e ran, 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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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
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Cite
as: 596 U. S. 767 (2022)
809
Sotomayor, J., dissenting
a doctrinal perspective, the Court's failure to apply the play-
i
n-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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The Court's analysis does leave some options open to
Mai
ne. 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.
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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