Dismantling Jefferson’s ‘Wall’ – Decision By Decision

By Samuel Krieger

First Amendment text of the United States Constitution and US Supreme Court(Getty Images)

Last July in Prime Magazine, we discussed the United States Supreme Court’s grant of certiorari in Carson v. Makin, which was a First Amendment case arising from Maine. The First Amendment to the United States Constitution ratified in 1791 provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” In 1801, in reply to a letter, Thomas Jefferson, then President and previously an advocate of the Bill of Rights, said that the First Amendment had been intended to build a “wall of separation between Church and State.” For many years, the Supreme Court relied on these words in Jefferson’s non-statutory letter to justify its restrictive First Amendment jurisprudence. 

In Trinity Lutheran (2017), a case arising out of Missouri, and Espinoza (2020), a case arising from Montana, the Court decided two major cases involving the Free Exercise clause of the First Amendment, specifically as it applies to programs established by various states to provide aid to schools and students. Together with the 2021 decision in Fulton v Philadelphia, the  “Roberts” Court began dismantling Jefferson’s metaphoric “wall.” On June 21, 2022, the Court decided Carson v. Makin, perhaps completely dismantling Jefferson’s “wall,” at least with respect to the Free Exercise clause.


The Court issued its opinion in Carson in a 6-3 ruling. The Court held that Maine’s program that pays tuition (up to a statutory limit) to out-of-district public or private high schools for students whose districts do not operate a high school, but which requires participating schools to be nonsectarian, violated the Free Exercise Clause. The majority opinion by Chief Justice Roberts says in part:

“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 anti-establishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise…

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”


Some of the language in the Carson opinion may be helpful in the area of special-education schools catering to religious students, since under existing legislation, many of these schools are funded by government aid on behalf of the students. An additional takeaway from the opinion relates to the current “substantial equivalency” controversy, in that the Court noted that the participating schools deemed eligible for reimbursement under the Maine program did not necessarily have to comply with the statutory criteria applicable to the instructional program of Maine public schools but were exempt from these requirements and instead were subject only to general “standards and indicators governing the implementation of their chosen curriculum.” Additionally, participating schools did not need to hire state-certified teachers. The extent to which a state may impose additional conditions on participating sectarian schools — in both curriculum and hiring — even if they impinge on certain religious beliefs — remains an unresolved question that will likely spawn additional litigation .

We should not deceive ourselves; As the opposition to charter schools demonstrates, irrespective of any judicial decisions, the powerful public education lobby consisting of teacher unions and others will definitely push back on the government allocating additional aid outside the public school system, especially during a time of budgetary constraints. n

Samuel Krieger, Esq. is a member of Krieger & Prager LLP, a New York-based law firm which serves as counsel to numerous religious and not-for-profit organizations.  

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