Statement of Maine Attorney General Aaron Frey on Supreme Court Decision in Carson v. Makin

June 21, 2022


Contact: Danna Hayes




Statement of Maine Attorney General Aaron Frey on 

Supreme Court Decision in Carson v. Makin


AUGUSTA –  Maine Attorney General Aaron Frey expressed his disappointment today with a United States Supreme Court decision, issued this morning, striking down a Maine law prohibiting religious schools from receiving public funds.  Approximately 5,000 Maine children live in districts that neither have a public school nor contract with a school in a nearby district.   To ensure that these children have access to a free public education, they are permitted to attend at public expense a public or private school of their choice.  Public funds cannot be used to attend a private school that promotes religion because such schools, by definition, do not provide the equivalent of a public education.

Several families who wanted to send their children to religious schools at taxpayer expense challenged the law, arguing that it violated their constitutional rights, including their First Amendment right to the free exercise of religion.  Both the federal court in Maine and a unanimous panel of the First Circuit Court of Appeals rejected the challenge and upheld the law.  In today’s decision, a divided Supreme Court struck down the law, rejecting Maine’s argument that the purpose of the tuition program was to provide a public education for students who would otherwise be without, and concluding that Maine had created a school choice program that allowed a group of parents to select the secondary school of their choice. As a result, the Court held that their recent precedent dictates that excluding religious schools violates the Free Exercise Clause.  Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented, noting that the Court had effectively eliminated the notion of their being any play in the joints between the Establishment Clause and the Free Exercise Clause and expressing concern that this decision would open the door to claims that states must fund the religious equivalent of other public programs.

“I am terribly disappointed and disheartened by today’s decision,” said AG Frey.  “Public education should expose children to a variety of viewpoints, promote tolerance and understanding, and prepare children for life in a diverse society.   The education provided by the schools at issue here is inimical to a public education.  They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff.  One school teaches children that the husband is to be the leader of the household.   While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear.  I intend to explore with Governor Mills’ administration and members of the Legislature statutory amendments to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.”

While the Court’s decision paves the way for religious schools to apply to receive public funds, it is not clear whether any religious schools will do so.   Educational facilities that accept public funds must comply with anti-discrimination provisions of the Maine Human Rights Act, and this would require some religious schools to eliminate their current discriminatory practices.