4 | JUNE 30 • 2022 

PURELY COMMENTARY

O

n June 21, the 
Supreme Court issued 
a landmark decision 
prohibiting government from 
excluding religion and religious 
institutions from 
government 
funding pro-
grams. 
This decision 
in Carson v. 
Makin follows on 
the heels of two 
other high court 
decisions in the last five years 
emphasizing that such exclu-
sions constitute religious dis-
crimination prohibited under 
the First Amendment. 
But what makes this decision 
important is its rejection of 
the so-called “status-use” dis-
tinction: government may not 
discriminate based on the mere 
religious status of an institution 
but could discriminate if funds 
would be used for a religious 
purpose. That distinction had 
left the door open for govern-
ment to prevent funding, avail-
able to other private institu-
tions, from flowing to religious 
institutions — and, in particu-
lar, religious schools. Yesterday’s 
opinion closes that door.
At stake in Carson was 
Maine’s tuition assistance pro-
gram. Over half the school 
districts in rural Maine do 
not have their own secondary 
schools. Maine solved this 
problem by allowing parents 
in those districts to select an 
approved private school for 

their children. In turn, the state 
would pay tuition to the par-
ents’ chosen private school on 
the student’s behalf. However, 
Maine’s program expressly 
excluded “sectarian” schools 
from the tuition assistance 
program, even if they satisfied 
all other criteria for being an 
approved school.
In the 1970s and early 1980s, 
the Supreme Court’s doctrine 
would have deemed it uncon-
stitutional to include religious 
schools in such a program. At 
that time, the Court viewed 
nearly all funding of religion 
and religious institutions as 
violations of the separation of 
church and state. But at the 
turn of the millennium, the 
Supreme Court’s views shifted. 
Instead of viewing separation 
of church and state as requiring 
a general prohibition on the 
funding of religion, the Court’s 
decision emphasized that the 
doctrine simply required neu-
trality. That prohibited funding 
designed specifically for reli-
gious institutions but allowed 
government to fund religious 
institutions alongside other 
comparable private institutions.
This shift, however, exposed 
the discrimination question at 
stake in yesterday’s decision. If 
government is now allowed to 
include religious institutions 
in funding programs on equal 
terms with other comparable 
private institutions, what hap-
pens when it refuses to do so? 
Is that sort of refusal the kind of 

religious discrimination that the 
First Amendment prohibits?
In recent years, the Court 
has tried to walk a fine line 
in answering this question. In 
2017, in Trinity Lutheran v. 
Comer, the Court’s majority 
opinion, authored by Chief 
Justice John Roberts, held 
that when government makes 
funding generally available, 
it cannot exclude institutions 
based on their religious status. 
In that case, Missouri reject-
ed a church-run school from 
an environmental grant to 
resurface a playground. The 
Court ruled that the state had 
violated the First Amendment 
by excluding an institution 
“because of what it is — a 
church.
” By contrast, the Court 
implied that government could 
exclude religious institutions 
from programs in which the 
funds would be used for spe-
cifically religious purposes. 
Resurfacing a playground is one 
thing; rebuilding a church sanc-
tuary quite another.
Maine deployed this distinc-
tion in defending its tuition 
assistance program. In its view, 
the religious schools would pre-
sumably use the funds — that 
is, at least in part — to teach 
religion. Excluding religious 

schools from the program was 
thus constitutional.
In a 6-3 decision, the 
Supreme Court held that 
excluding religion and religious 
institutions from generally 
available government funding 
programs — whether it is based 
on religious status or reli-
gious use — violates the First 
Amendment. In the majority 
opinion, written by Roberts, the 
Court held that Maine “pays 
tuition for certain students at 
private schools — so long as the 
schools are not religious. That is 
discrimination against religion.
” 
And importantly, the Court 
argued, it would be a mistake 
to read past cases as suggesting 
“that use-based discrimination 
is any less offensive to the Free 
Exercise Clause.
”
Describing the precedents 
in this way is a bit of a stretch: 
The Court’s prior decisions had 
certainly implied that govern-
ment could exclude religious 
institutions from funding pro-
grams on the basis of religious 
use. But there is good reason to 
think that the distinction was a 
mistake from the get-go. After 
all, it is all-too-easy for govern-
ment to play semantics: When 
they exclude a religious school, 
is it because of its status as a 

opinion

Supreme Court OKs 
Some Funding of 
Religious Institutions

Michael A. 
Helfand 
JTA.org

The inscription on the Supreme Court building reads “equal justice 
under law.” 

JENS GRABENSTEIN/FLICKR COMMONS

