The Constitutionality of a Non-sectarian Requirement: The US Supreme Court’s Considerations on Religious Schools’ Funding

By: Sanchit Singh

On December 08th, 2021, the US Supreme Court first heard oral arguments in Carson v. Makin delving into whether state laws could prohibit students from participating in an otherwise available general funding aid scheme for secondary school students if the state’s basis for prohibition stems from institutional inclusion of religious or sectarian instruction. At the heart of the arguments lie different interpretational perspectives, by the State of Maine and the plaintiff families – Carson, Nelsons, and Gillies, on established jurisprudence relating to the Establishment and Free Exercise Clauses guaranteed under the American Constitution. What makes the ongoing contention on the constitutionality of the policy complex, besides a complicated judicial history, are the considerations peculiar to the State of Maine that accompany the challenge some of which are discussed in this piece.


The Free Exercise clause, guaranteed under the Fourteenth Amendment, seeks protection against inequality predicated based on the religious status by the legal imposition of special disabilities to its effect. Espinoza v. Montana Department of Revenue reiterated these ideals by protecting religious observers from the exclusion of public health benefits introduced through legislation. In its response, the State of Maine, in the present case, relies on a unique distinction between status and use. Maine argues that approvals are considered based on the inclusivity of sectarian instruction in school curricula, i.e., a school could be catholic and still receive funding under the scheme so long as the teachings are not religious. Espinoza held denial of funding based on status to be unconstitutional but had not dealt with use. The State has little evidence to establish an elaborate and consistent application of the procedure in determining an institution’s fulfillment of the non-sectarian requirement on grounds besides status. This is exhibited in the State’s inconsistent decisions provided in the Kent and Cardigan School cases. Prima facie, it seems that decision-making of approval or disapproval, without clarity on the application of the use test, has been arbitrary and exclusive based on status.

In Espinoza, the Supreme Court struck down the Montana Constitution’s no-aid provision that prohibited aid to a school that was controlled by a “church, sect or dominion”. This creates a favorable precedent for the aggrieved families in Carson, opening door to a situation that might see states required to fund private sectarian education. While Maine’s confidence in its religious-neutral public school system argument may be misplaced, it does make us want to discuss executive discretion for a moment. Should the State solely have the prerogative in deciding how it approaches its funding policies? The answer should be affirmative. Take for instance France’s approach toward secularism in the schooling system. The Jules Ferry Laws of 1882 sought to separate the school and State by establishing mandatory free and laic education. The Law of 1905 only ensured the separation of Church and State by abolishing the Concordat of 1801, ending the system of “recognized religions”, whilst still recognizing the freedom to practice religion. We see here that the benefit and burden on religions in promoting secular instruction are proportional.

In the present case, this burden in no way creates a legally imposed disability for religions, since the policy is in furtherance of the separation of Church and State. There are three broad ways jurisdictions deal with this: by funding all sectarian and non-sectarian education, not funding sectarian education at all, and leaving the decision-making to parents. It is for the State to determine how far it would like to take this separation. Moreover, the families seem to base their fourteenth amendment violation claim on the fact that the State had been funding sectarian institutions for centuries in error. Indeed, the practice may have been prevalent in Maine for centuries but existed purely as an executive granted privilege and not a constitutional right, therefore there is no legitimate claim for violation on the grounds of discontinuance of an executive tradition.


Much like Espinoza, Trinity Lutheran Church v. Comer held the exclusion of churches from neutral and secular aid programs to be violative of the First and Fourteenth amendments. The court observed the exclusion to be an imposed penalty against the free exercise of religion and further clarified that the State’s discrimination against the first amendment was not a denial of the grant but rather the act of refusing the church, based on its status, to compete with secular organizations. In response to both these cases, the State has conceded that it is clear sectarian institutions cannot be excluded concerning secular activities based on their status, however, “there is significant room for regional variation”. The regional variation argument aligns with the state autonomy point I made earlier and by extension seeks exemption from Espinoza. One state may want inclusion and another may not, considering their internal dynamics, either way, it is not unconstitutional since it is the prerogative of the states to determine what is in their best interest, which is what variation argues for. Conversely, in Locke v. Davey the opinion was quite contrasting. In Locke, the court held that while the federal constitution did not preclude the election of religious instruction through government funding, the State’s prohibition merely reflected its substantial interest against the establishment of religion by providing aid to devotional degrees and therefore its exclusion was not unconstitutional. Further, the State’s differential treatment of public education and devotional theology did not comprise hostility towards religion, since it did not create any restrictions or prohibitions for attendance in religious institutions or related curricula as such. Locke remains good law since they are concerned that sectarian funding may lead to the establishment of religion by states is legitimate, even though cabined within its facts. Claims could only arise in situations where privileges are only extended to particular religions or if the State were to bar devotional teaching altogether but cannot claim that the non-extension of voluntary government assistance is a violation of constitutional rights.


In Carson, an important question being considered is whether the State infringes upon religious freedom by intruding into parents’ decision-making while spending aid received from the government for education. For this, the families rely on Zelman v. Simmons-Harris stating that “private independent choice severs the link between government funds and religious instruction”. In Zelman, the Supreme Court observed that in situations where government aid programs are neutral and provide assistance to a broad class of citizens, said aid that is directed is a result of an independent private choice and is not subject to challenge under the Establishment Clause. The court in this case was considering whether a challenge under the Establishment Clause was permissible. The State is permitted to fund education, despite the incidental benefit that sectarian institutions receive. The present case is different from Zelman, here the consideration is requiring the State (contrarian to permissibility) to fund sectarian education by not differentiating between institutions based on the kind of education being imparted. The difference is, for instance, between whether it is permissible for schools to pray before classes and mandatorily requiring schools to pray.

Justices Breyer and Kagan raise important and interconnected points during the arguments. The State’s concern of religious strife and divisiveness as a result of funding sectarian education puts the State or courts in the middle of religious activity having to deal with inter-faith conflicts on matters such as preferential treatment and what comprises religion in granting funding. And as we see in the present case, Maine seeks to distance itself from religion. The first amendment cases function on the principle of play in the joints which allows a degree of leeway for states not requiring them to follow the same model of funding, where a certain amount of funding is neither commanded nor prohibited under the first amendment. From this, it would be understood that courts could weigh interests differently in such cases. Zelman, however, creates a limitation for the court to consider the “perceived endorsement of a religious message”, religious divisiveness, and strife as having no bearing on the constitutional analysis as it is reasonably attributable to a private and independent choice and not the government whose role ends upon disbursement of benefits, with the only exception being situations where the government grants special benefit that might lead to the establishment of religion.


It is amply clear that Maine’s exclusion policy is discriminatory against religions but we see cases where the state gets considerable latitude in deciding the burden or subsidy that it imposes on religions, so long as it is applied without prejudice. However, Carson is in line with one of many decisions made over the past four decades raising concern over discrimination against sectarian interests. Recent cases such as Masterpiece Cakeshop and Espinoza only create favorable precedents for the families to claim benefit from riding this trend of the U.S. Supreme Court. While the degree of leeway/state autonomy argument may appeal to the court, it is to be seen whether they will be bound by many of these narrowly decided cases that have had broad implications. A decision in favor of the petitioners may see limits imposed on states to inculcate secular and standardized public and private education. Constitutional courts should not be bound to not weigh in or consider the societal implications of any of their constitutional analyses, proceeding in such direction may prove to be hazardous and antithetical to the American constitutional spirit.

(Sanchit Singh is a law undergraduate at Vivekananda School of Law and Legal Studies, Delhi (GGSIPU). The author may be contacted via mail at

Cite as: Sanchit Singh, ‘The Constitutionality of a Non-sectarian Requirement: The US Supreme Court’s Considerations on Religious Schools’ Funding’ (The RMLNLU Law Review Blog, 06 July 2022) <>date of access

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