Why SCOTUS said Maine could not discriminate against religious schools

by Daniela Ellerbeck
29 June 2022


Recent weeks have seen the Supreme Court of Appeal of the United States of America (“SCOTUS”) tackle a variety of religious freedom cases. One of those cases was Carson v Makin, which concerned the State of Maine (the State) giving a general public benefit – funding – to private schools, but excluding private religious schools from being eligible for this funding.


Maine is America’s most rural state, where not every town has its own public schools. State law also requires that the State provide free public education. To solve the quandary created by the State not having enough public schools to fulfil its duty to ensure that every child receives a free public education, the State helped parents pay their children’s school fees of the school that the parents then choose to send their children to. However, since 1981, to qualify for this tuition assistance payment, such a school must meet a variety of requirements, including being “non-sectarian”. According to the State, a school is considered to be “sectarian” if it a) associates with a particular faith; b) promotes that faith; and c) presents learning material through the lens of that faith.

The problem:

Two sets of parents, the Carsons and Nelsons, challenged this “non-sectarian” requirement. Both families had enrolled their children at private religious schools, because of the schools’ high academic standards and because the schools’ worldview aligned with their sincerely held religious beliefs. The State refused to help these parents to pay the school fees, although it would have done so if the private schools had not been “sectarian”. The parents alleged that the State’s actions violated the American Constitution’s Free Exercise Clause (First Amendment), as well as the Establishment Clause (First Amendment), and the Equal Protection Clause (Fourteenth Amendment).

What the law requires:

Free Exercise Clause:

The Court found that States violate the Free Exercise Clause (which protects against unfair discrimination because of one’s faith) when they exclude religious observers from a general public benefit. In Trinity Lutheran v Comer (which had to do with public funding for safe playgrounds) SCOTUS had held that the State of Missouri could not fairly discriminate against an otherwise eligible recipient of a public benefit because of the recipient’s religious character. In Espinoza v Montana Department of Revenue (which had to do with the State of Montana giving tax credits to donors who donated scholarships to private schools – i.e. Montana was funding private education in a roundabout way), the Court found that States did not need to subsidise private education, but once a State decided to do so, it could not disqualify some schools just because they were religious.

Establishment Clause:

Simultaneous to the Free Exercise Clause prohibiting unfair discrimination because of one’s faith, the Establishment Clause requires separation between the Church and State and requires that the American government be religiously neutral. As an example, in the case of Locke v Davey where the State of Washington gave scholarships for areas of study but excluded vocational religious degrees (i.e. studying to be a church minister)  – SCOTUS had found this to be fair discrimination because of the State’s antiestablishment interests.

Balancing act:

In the current case, the State offers its citizens a benefit where public funds are used to support school fees at private schools. However, the State then excluded certain private schools, because of their religious beliefs. This triggered strict scrutiny to determine if the State’s discrimination was fair. (Strict scrutiny is roughly the equivalent of a section 36 test in the Constitution, which is triggered whenever a law limits a constitutionally protected right.)

Strict Scrutiny:

To pass the strict scrutiny test, the interest the State is seeking to achieve must be of the highest order and its actions must be narrowly tailored.

In evaluating the first leg of this test – the State’s interest – SCOTUS referred to Zelman v Simmons-Harris where it had held that a neutral benefit programme, where public funds flowed to religious organisations because of people’s private choices, did not offend the Establishment Clause’s requirement that a State be neutral. (I.e. When a State is giving everyone the same benefit it is acting neutrally, and if some people chose to spend that benefit at religious organisations, the State was still acting neutrally and its neutrality was not affected by these people’s choices.)

SCOTUS found that the State’s decision to exclude religious schools from the public benefit (i.e. the State helping to pay the children’s school fees) was a greater degree of separation between Church and State than that required by the Establishment Clause. Additionally, in Trinity, the Court had held that when a State’s interest enforced a greater degree of separation between Church and State than that required by the Constitution, the State’s interest was not compelling enough to pass the strict scrutiny test.

Maine’s “non-sectarian” requirement, therefore, unfairly discriminated against religious schools, because its antiestablishment interest did not justify excluding certain members of its community (because of their religious beliefs) from a generally available public benefit.

Dissent in a nutshell:

Three (3) of the Court’s nine (9) justices disagreed with the majority’s view. In essence, the minority was of the view that Zelman permitted States to provide funding to religious schools, but it did not obligate States to do so.

Furthermore, their view is that the “play-in-the-joints” doctrine (i.e. the balancing act between the Free Exercise and Establishment Clauses) allowed States a degree of freedom. This degree of freedom allows States to withhold aid from religious institutions due to a State’s antiestablishment interests without violating the Free Exercise Clause.

Finally, their view was that the cases of Trinity and Espinoza meant that a State could not deny a religious school a public benefit because of its religious status. However, schools that presented the learning material through the lens of that faith, were putting the State’s money to a religious use, which made the current case more akin to Locke than Trinity and Espinoza. (The majority’s view was that strict scrutiny was not avoided by arguing religious use.)


Although foreign cases do not have any binding effect on South African courts, they are nevertheless interesting and important, both from a comparative law point of view and in picking up international trends in the area of religious freedom law which does – at times – spill over into our local context.

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Daniela Ellerbeck

Daniela Ellerbeck is an attorney of the High Court of South Africa. She serves as FOR SA’s Legal Advisor and Parliamentary Liaison. For her full bio, see See her full bio here.

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