U.S. Supreme Court Hayburn's Case, 2 U.S. 2 Dall. 409 409
(1792) Hayburn's Case 2 U.S. (2 Dall.) 409 MOTION FOR MANDAMUS This was a motion for a mandamus to be
directed to the Circuit Court for the District of Pennsylvania
commanding the said court to proceed in a certain petition of Wm.
Hayburn, who had applied to be put on the pension list of the
United States as an invalid pensioner. The principal case arose upon the act
of Congress passed 23 March, 1792. The Attorney General (Randolph) who
made the motion for the mandamus, having premised that it was done ex officio, without an application from any particular
person, but with a view to procure the execution of an act of
Congress particularly interesting to a meritorious and unfortunate
class of citizens, the court declared that it entertained great
doubt upon his right, under such circumstances and in a case of
this kind, to proceed ex officio, and directed him to
state the principles on which he attempted to support the right.
The Attorney General accordingly entered into an elaborate
description of the powers and duties of his office. But the court being divided in opinion
on that question, the motion, made ex officio, was not
allowed. The Attorney General then changed the
ground of his interposition, declaring it to be at the instance and
on behalf of Hayburn, a party interested; and he entered into the
merits of the case upon the act of Congress and the refusal of the
judges to carry it into effect. The Court observed that it would hold
the motion under advisement until the next term, but no decision
was ever pronounced, as the legislature, at an
intermediate Page
2 U. S. 410 session, provided in another way for
the relief of the pensioners. * Page 2 U. S. 411 The Circuit Court for the District of Pennsylvania, consisting
of Wilson, and Blair, Justices, and Peters, District Judge, made
the following representation in a letter jointly addressed to the
President of the United States on 18 April, 1792:

															"To you it officially belongs to 'take care that the laws' of
the United States 'to faithfully executed.' Before you, therefore,
we think it our duty to lay the sentiments which, on a late painful
occasion, governed us with regard to an act passed by the
legislature of the union."

															"The people of the United States have vested in Congress all
legislative powers 'granted in the Constitution.'"

															"They have vested in one Supreme Court and in such inferior
courts as the Congress shall establish 'the judicial power of the
United States.'"

															"It is worthy of remark that in Congress the whole legislative
power of the United States is not vested. An important part of that
power was exercised by the people themselves when they 'ordained
and established the Constitution.'"

															"This Constitution is 'the Supreme Law of the Land.' This
supreme law 'all judicial officers of the United States are bound,
by oath or affirmation, to support.'"

															"It is a principle important to freedom that in government, the
judicial should be distinct from and independent of the legislative
department. To this important principle the people of the United
States, in forming their Constitution, have manifested the highest
regard."

															"They have placed their judicial power not in Congress, but in
'courts.' They have ordained that the 'judges of those courts shall
hold their offices during good behavior,' and that 'during their
continuance in office, their salaries shall not be
diminished.'"

															"Congress has lately passed an act to regulate, among other
things, 'the claims to invalid pensions.'"

															"Upon due consideration, we have been unanimously of opinion
that under this act, the circuit court held for the Pennsylvania
District could not proceed"

															"1st. Because the business directed by this act is not of a
judicial nature. It forms no part of the power vested by the
Constitution in the courts of the United States; the circuit court
must consequently have proceeded without constitutional
authority."

															"2d. Because if, upon that business, the court had proceeded,
its judgments (for its opinions are its judgments) might, under the
same act, have been revised and controlled by the legislature, and
by an officer in the executive department. Such revision and
control we deemed radically inconsistent with the independence of
that judicial power which is vested in the courts, and consequently
with that important principle which is so strictly observed by the
Constitution of the United States. " Page 2 U. S. 412 "These, Sir, are the reasons of our conduct. Be assured that
though it became necessary, it was far from being pleasant. To be
obliged to act contrary either to the obvious directions of
Congress or to a constitutional principle, in our judgment equally
obvious, excited feelings in us which we hope never to experience
again."

															The Circuit Court for the District of North Carolina (consisting
of Iredell Justice, and Sitgreaves, District Judge) made the
following representation in a letter jointly addressed to the
President of the United States on 8 June, 1792.

															"We, the judges now attending at the Circuit Court of the United
States for the District of North Carolina, conceive it our duty to
lay before you some important observations which have occurred to
us in the consideration of an act of Congress lately passed,
entitled"

															"An act to provide for the settlement of the claims of widows
and orphans barred by the limitations heretofore established, and
to regulate the claims to invalid pensions."

															"We beg leave to premise that it is as much our inclination as
it is our duty to receive with all possible respect every act of
the legislature, and that we never can find ourselves in a more
painful situation than to be obliged to object to the execution of
any, more especially to the execution of one founded on the purest
principles of humanity and justice, which the act in question
undoubtedly is. But however, lamentable a difference in opinion
really may be, or with whatever difficulty we may have formed an
opinion, we are under the indispensable necessity of acting
according to the best dictates of our own judgment after duly
weighing every consideration that can occur to us, which we have
done on the present occasion."

															"The extreme importance of the case and our desire of being
explicit beyond the danger of being misunderstood, will, we hope,
justify us in stating our observations in a systematic manner. We
therefore, Sir, submit to you the following:"

															"1. That the Legislative, Executive, and Judicial departments
are each formed in a separate and independent manner, and that the
ultimate basis of each is the Constitution only, within the limits
of which each department can alone justify any act of
authority."

															"2. That the legislature, among other important powers,
unquestionably possess that of establishing courts in such a manner
as to its wisdom shall appear best, limited by the terms of the
Constitution only, and to whatever extent that power may be
exercised, or however severe the duty it may think proper to
require, the judges, when appointed in virtue of any such
establishment, owe implicit and unreserved obedience to it."

															"3. That at the same time, such courts cannot be warranted, as
we conceive, by virtue of that part of the Constitution delegating
Judicial power, for the exercise of which any act of the
legislature is provided, in exercising (even under the authority of
another act) Page 2 U. S. 413 any power not in its nature judicial, or, if judicial, not
provided for upon the terms the Constitution requires."

															"4. That whatever doubt may be suggested, whether the power in
question is properly of a judicial nature, yet inasmuch as the
decision of the court is not made final, but may be at least
suspended in its operation by the Secretary at War, if he shall
have cause to suspect imposition or mistake, this subjects the
decision of the court to a mode of revision which we consider to be
unwarranted by the Constitution, for though Congress may certainly
establish, in instances not yet provided for, courts of appellate
jurisdiction, yet such courts must consist of judges appointed in
the manner the Constitution requires and holding their offices by
no other tenure than that of their good behavior, by which tenure
the office of Secretary at War is not held. And we beg leave to add
with all due deference that no decision of any court of the United
States can under any circumstances, in our opinion, agreeable to
the Constitution, be liable to a reversion or even suspension by
the legislature itself, in whom no judicial power of any kind
appears to be vested but the important one relative to
impeachments."

															"These, sir, are our reasons for being of opinion, as we are at
present, that this circuit court cannot be justified in the
execution of that part of the act which requires it to examine and
report an opinion on the unfortunate cases of officers and soldiers
disabled in the service of the United States. The part of the act
requiring the court to sit five days for the purpose of receiving
applications from such persons we shall deem it our duty to comply
with, for whether in our opinion such purpose can or cannot be
answered, it is, as we conceive, our indispensable duty to keep
open any court of which we have the honor to be judges as long as
Congress shall direct."

															"The high respect we entertain for the legislature, our feelings
as men for persons whose situation requires the earliest as well as
the most effectual relief, and our sincere desire to promote,
whether officially or otherwise, the just and benevolent views of
Congress so conspicuous on the present as well as on many other
occasions have induced us to reflect whether we could be justified
in acting under this act personally in the character of
commissioners during the session of a court, and could we be
satisfied that we had authority to do so, we would cheerfully
devote such part of our time as might be necessary for the
performance of the service. But we confess we have great doubts on
this head. The power appears to be given to the court only, and not
to the judges of it, and as the Secretary at War has not a
discretion in all instances, but only in those where he has cause
to suspect imposition or mistake, to withhold a person recommended
by the court from being named on the pension list, it would be
necessary for us to be well persuaded we possessed such an
authority before we exercised a power, which might be a means of
drawing money out of the public treasury as effectually as an
express appropriation by law. We do not mean, however, to preclude
ourselves from a very deliberate consideration whether we can be
warranted in executing the purposes of the act in that manner in
case an application should be made."

															"No application has yet been made to the court or to ourselves
individually, and therefore we have had some doubts as to the
propriety of giving an opinion in a case which has not yet come
regularly and judicially before us. None can be more sensible than
we are of the necessity of judges' being in general extremely
cautious in not intimating an opinion in any case extrajudicially,
because we well know how liable the best minds are, notwithstanding
their utmost care, to a bias which may arise from a preconceived
opinion, even unguardedly, much more deliberately, given. But in
the present instance, as many unfortunate and meritorious
individuals whom Congress have justly thought proper objects of
immediate relief may suffer great distress even by a short delay
and may be utterly ruined by a long one, we determined at all
events to make our sentiments known as early as possible,
considering this as a case which must be deemed an exception to the
general rule upon every principle of humanity and justice;
resolving however, that so far as we are concerned individually, in
case an application should be made, we will most attentively hear
it, and if we can be convinced this opinion is a wrong one, we
shall not hesitate to act accordingly, being as far from the
weakness of supposing that there is any reproach in having
committed an error, to which the greatest and best men are
sometimes liable, as we should be from so low a sense of duty, as
to think it would not be the highest and most deserved reproach
that could be bestowed on any men (much more on judges) that they
were capable from any motive of persevering against conviction in
apparently maintaining an opinion which they really thought to be
erroneous. " Page 2 U. S. 414 RULE.

															THE Attorney-General having moved for information relative to
the system of practice by which the attorneys and counselors of
this Court shall regulate themselves and of the place in which
rules in causes here depending shall be obtained, THE CHIEF JUSTICE
at a subsequent day stated that:

															The Court considers the practice of the Courts of King's Bench
and Chancery in England as affording outlines for the practice of
this Court, and that it will from time to time make such
alterations therein as circumstances may render necessary.

															* See an act passed 28 Feb., 1793. As the reasons
assigned by the judges for declining to execute the first act of
Congress involve a great constitutional question, it will not be
thought improper to subjoin them in illustration of Hayburn's
Case. The Circuit Court for the District of New York (consisting of
Jay, Chief Justice, Cushing Justice, and Duane, District Judge)
proceeded on 5 April, 1791, to take into consideration the act of
Congress entitled

															"An act to provide for the settlement of the claims of widows,
and orphans barred by the limitations heretofore established, and
to regulate the claims to invalid pensions,"

															and was thereupon unanimously of opinion and agreed

															"That by the Constitution of the United States, the government
thereof is divided into three distinct and independent branches,
and that it is the duty of each to abstain from and to oppose,
encroachments on either."

															"That neither the Legislative nor the Executive branches can
constitutionally assign to the Judicial any duties but such as are
properly judicial and to be performed in a judicial manner."

															"That the duties assigned to the circuit courts by this act are
not of that description, and that the act itself does not appear to
contemplate them as such, inasmuch as it subjects the decisions of
these courts, made pursuant to those duties, first to the
consideration and suspension of the Secretary at War and then to
the revision of the legislature, whereas by the Constitution,
neither the Secretary at War nor any other Executive officer, nor
even the legislature, is authorized to sit as a court of errors on
the judicial acts or opinions of this court."

															"As, therefore, the business assigned to this Court by the act
is not judicial nor directed to be performed judicially, the act
can only be considered as appointing commissioners for the purposes
mentioned in it by official instead of personal descriptions."

															"That the judges of this court regard themselves as being the
commissioners designated by the act, and therefore as being at
liberty to accept or decline that office."

															"That as the objects of this act are exceedingly benevolent, and
do real honor to the humanity and justice of Congress, and as the
judges desire to manifest, on all proper occasions and in every
proper manner their high respect for the national legislature, they
will execute this act in the capacity of commissioners."

															"That as the legislature has a right to extend the session of
this court for any term which it may think proper by law to assign,
the term of five days, as directed by this act, ought to be
punctually observed."

															"That the judges of this court will, as usual, during the
session thereof, adjourn the court from day to day or other short
periods as circumstances may render proper, and that they will
regularly, between the adjournments, proceed as commissioners to
execute the business of this act in the same courtroom or
chamber."

Summary:
In Hayburn's Case (1792), the Supreme Court faced a motion for a mandamus directing the Circuit Court for the District of Pennsylvania to consider William Hayburn's petition to be placed on the invalid pension list. The case arose under the Act of Congress passed in 1792. The Attorney General, Randolph, made the motion ex officio, but the Court questioned his right to proceed in this manner and requested him to state the principles supporting his right. The Court was divided on the question, and the ex officio motion was not allowed. The Attorney General then changed the basis for his intervention, acting on behalf of Hayburn.

The Court considered the merits of the case but did not deliver a decision, as the legislature provided relief for pensioners through other means. The case raised significant constitutional questions regarding the separation of powers between the legislative, executive, and judicial branches of the US government. The Circuit Court for the District of Pennsylvania and the Circuit Court for the District of New York both expressed concerns about the Act, stating that it assigned non-judicial duties to the courts and subjected their decisions to revision by the Executive and Legislative branches, which they viewed as unconstitutional.


NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 20–1088

															_________________

															DAVID CARSON, as parent and next friend of O.
C., et al., PETITIONERS v. A. PENDER MAKIN

															on writ of certiorari to the united states
court of appeals for the first circuit

															[June 21, 2022]

															Chief Justice Roberts delivered the opinion of
the Court.

															Maine has enacted a program of tuition
assistance for parents who live in school districts that do not
operate a secondary school of their own. Under the program, parents
designate the secondary school they would like their child to
attend—public or private—and the school district transmits payments
to that school to help defray the costs of tuition. Most private
schools are eligible to receive the payments, so long as they are
“nonsectarian.” The question presented is whether this restriction
violates the Free Exercise Clause of the First Amendment.

															I

															A

															Maine’s Constitution provides that the State’s
legislature shall “require . . . the several towns to
make suitable provision, at their own expense, for the support and
maintenance of public schools.” Me. Const., Art. VIII, pt. 1, §1.
In accordance with that command, the legislature has required that
every school-age child in Maine “shall be provided an opportunity
to receive the benefits of a free public education,” Me. Rev. Stat.
Ann., Tit. 20–A, §2(1) (2008), and that the required schools be
operated by “the legislative and governing bodies of local school
administrative units,” §2(2). But Maine is the most rural State in
the Union, and for many school districts the realities of remote
geography and low population density make those commands difficult
to heed. Indeed, of Maine’s 260 school administrative units (SAUs),
fewer than half operate a public secondary school of their own.
App. 4, 70, 73.

															Maine has sought to deal with this problem in
part by creating a program of tuition assistance for families that
reside in such areas. Under that program, if an SAU neither
operates its own public secondary school nor contracts with a
particular public or private school for the education of its
school-age children, the SAU must “pay the tuition . . .
at the public school or the approved private school of the parent’s
choice at which the student is accepted.” Me. Rev. Stat. Ann., Tit.
20–A, §5204(4) (Cum. Supp. 2021). Parents who wish to take
advantage of this benefit first select the school they wish their
child to attend. Ibid. If they select a private school that
has been “approved” by the Maine Department of Education, the
parents’ SAU “shall pay the tuition” at the chosen school up to a
specified maximum rate. See §§2902, 2951, 5204(4).

															To be “approved” to receive these payments, a
private school must meet certain basic requirements under Maine’s
compulsory education law. §2951(1). The school must either be
“[c]urrently accredited by a New England association of schools and
colleges” or separately “approv[ed] for attendance purposes” by the
Department. §§2901(2), 2902. Schools seeking approval from the
Department must meet specified curricular requirements, such as
using English as the language of instruction, offering a course in
“Maine history, including the Constitution of Maine . . .
and Maine’s cultural and ethnic heritage,” and maintaining a
student-teacher ratio of not more than 30 to 1. §§2902(2), 2902(3),
4706(2), 2902(6)(C).

															The program imposes no geographic limitation:
Parents may direct tuition payments to schools inside or outside
the State, or even in foreign countries. §§2951(3), 5808. In
schools that qualify for the program because they are accredited,
teachers need not be certified by the State, §13003(3), and Maine’s
curricular requirements do not apply, §2901(2). Single-sex schools
are eligible. See Me. Rev. Stat. Ann., Tit. 5, §4553(2–A)
(exempting single-sex private, but not public, schools from Maine’s
antidiscrimination law).

															Prior to 1981, parents could also direct the
tuition assistance payments to religious schools. Indeed, in the
1979–1980 school year, over 200 Maine students opted to attend such
schools through the tuition assistance program. App. 72. In 1981,
however, Maine imposed a new requirement that any school receiving
tuition assistance payments must be “a nonsectarian school in
accordance with the First Amendment of the United States
Constitution.” Me. Rev. Stat. Ann., Tit. 20–A, §2951(2). That
provision was enacted in response to an opinion by the Maine
attorney general taking the position that public funding of private
religious schools violated the Establishment Clause of the First
Amendment. We subsequently held, however, that a benefit program
under which private citizens “direct government aid to religious
schools wholly as a result of their own genuine and independent
private choice” does not offend the Establishment Clause. Zelman v. Simmons-Harris , 536
U.S. 639 , 652 (2002). Following our decision in Zelman ,
the Maine Legislature considered a proposed bill to repeal the
“nonsectarian” requirement, but rejected it. App. 100, 108.

															The “nonsectarian” requirement for participation
in Maine’s tuition assistance program remains in effect today. The
Department has stated that, in administering this requirement, it
“considers a sectarian school to be one that is associated with a
particular faith or belief system and which, in addition to
teaching academic subjects, promotes the faith or belief system
with which it is associated and/or presents the material taught
through the lens of this faith.” 979 F.3d 21, 38 (CA1 2020). “The
Department’s focus is on what the school teaches through its
curriculum and related activities, and how the material is
presented.” Ibid. (emphasis deleted). “[A]ffiliation or
association with a church or religious institution is one potential
indicator of a sectarian school,” but “it is not dispositive.” Ibid .

															B

															This case concerns two families that live in
SAUs that neither maintain their own secondary schools nor contract
with any nearby secondary school. App. 70, 71. Petitioners David
and Amy Carson reside in Glenburn, Maine. Id. , at 74. When
this litigation commenced, the Carsons’ daughter attended high
school at Bangor Christian Schools (BCS), which was founded in 1970
as a ministry of Bangor Baptist Church. Id. , at 74, 80. The
Carsons sent their daughter to BCS because of the school’s high
academic standards and because the school’s Christian worldview
aligns with their sincerely held religious beliefs. Id. , at
74. Given that BCS is a “sectarian” school that cannot qualify for
tuition assistance payments under Maine’s program, id. , at
80, the Carsons paid the tuition for their daughter to attend BCS
themselves, id. , at 74.

															Petitioners Troy and Angela Nelson live in
Palermo, Maine. Id. , at 78. When this litigation commenced,
the Nelsons’ daughter attended high school at Erskine Academy, a
secular private school, and their son attended middle school at
Temple Academy, a “sectarian” school affiliated with Centerpoint
Community Church. Id. , at 78, 90, 91. The Nelsons sent their
son to Temple Academy because they believed it offered him a
high-quality education that aligned with their sincerely held
religious beliefs. Id. , at 78. While they wished to send
their daughter to Temple Academy too, they could not afford to pay
the cost of the Academy’s tuition for both of their children. Id. , at 79.

															BCS and Temple Academy are both accredited by
the New England Association of Schools and Colleges (NEASC), and
the Department considers each school a “private school approved for
attendance purposes” under the State’s compulsory attendance
requirement. Id. , at 80, 90. Yet because neither school
qualifies as “nonsectarian,” neither is eligible to receive tuition
payments under Maine’s tuition assistance program. Id. , at
80, 90. Absent the “nonsectarian” requirement, the Carsons and the
Nelsons would have asked their respective SAUs to pay the tuition
to send their children to BCS and Temple Academy, respectively. Id. , at 79.

															In 2018, petitioners brought suit against the
commissioner of the Maine Department of Education. Id. , at
11–12. They alleged that the “nonsectarian” requirement of Maine’s
tuition assistance program violated the Free Exercise Clause and
the Establishment Clause of the First Amendment, id. , at
23–27, as well as the Equal Protection Clause of the Fourteenth
Amendment, id. , at 29–30. Their complaint sought declaratory
and injunctive relief against enforcement of the requirement. Id. , at 31–32. The parties filed cross-motions for summary
judgment on a stipulated record. 401 F. Supp. 3d 207, 208 (Me.
2019). Applying Circuit precedent that had previously upheld the
“nonsectarian” requirement against challenge, see Eulitt v. Maine Dept. of Ed. , 386 F.3d 344 (CA1 2004), the District Court rejected
petitioners’ constitutional claims and granted judgment to the
commissioner. 401 F. Supp. 3d, at 209–212.

															While petitioners’ appeal to the First Circuit
was pending, this Court decided Espinoza v. Montana
Department of Revenue , 591 U. S. ___ (2020). Espinoza held that a provision of the Montana Constitution
barring government aid to any school “controlled in whole or in
part by any church, sect, or denomination,” Art. X, §6(1),
violated the Free Exercise Clause by prohibiting families from
using otherwise available scholarship funds at the religious
schools of their choosing. The First Circuit recognized that, in
light of Espinoza , its prior precedent upholding Maine’s
“nonsectarian” requirement was no longer controlling. 979
F. 3d, at 32–36. But it nevertheless affirmed the District
Court’s grant of judgment to the commissioner. Id., at
49.

															As relevant here, the First Circuit offered two
grounds to distinguish Maine’s “nonsectarian” requirement from the
no-aid provision at issue in Espinoza . First, the panel
reasoned that, whereas Montana had barred schools from receiving
funding “simply based on their religious identity—a status that in
and of itself does not determine how a school would use the
funds”—Maine bars BCS and Temple Academy from receiving funding
“based on the religious use that they would make of it in
instructing children.” 979 F. 3d , at 40. Second, the panel
determined that Maine’s tuition assistance program was distinct
from the scholarships at issue in Espinoza because Maine had
sought to provide “a rough equivalent of the public school
education that Maine may permissibly require to be secular but that
is not otherwise accessible.” 979 F. 3d , at 44. Thus, “the
nature of the restriction at issue and the nature of the school aid
program of which it is a key part” led the panel to conclude “once
again” that Maine’s “nonsectarian” requirement did not violate the
Free Exercise Clause. Id., at 46.

															We granted certiorari. 594 U. S. ___
(2021).

															II

															A

															The Free Exercise Clause of the First
Amendment protects against “indirect coercion or penalties on the
free exercise of religion, not just outright prohibitions.” Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S.
439 , 450 (1988). In particular, we have repeatedly held that a
State violates the Free Exercise Clause when it excludes religious
observers from otherwise available public benefits. See Sherbert v. Verner , 374 U.S.
398 , 404 (1963) (“It is too late in the day to doubt that the
liberties of religion and expression may be infringed by the denial
of or placing of conditions upon a benefit or privilege.”); see
also Everson v. Board of Ed. of Ewing , 330 U.S.
1 , 16 (1947) (a State “cannot exclude” individuals “ because
of their faith, or lack of it , from receiving the benefits of
public welfare legislation”). A State may not withhold unemployment
benefits, for instance, on the ground that an individual lost his
job for refusing to abandon the dictates of his faith. See Sherbert , 374 U. S., at 399–402 (Seventh-day Adventist
who refused to work on the Sabbath); Thomas v. Review Bd.
of Ind. Employment Security Div. , 450 U.S.
707 , 709, 720 (1981) (Jehovah’s Witness who refused to
participate in the production of armaments).

															We have recently applied these principles in the
context of two state efforts to withhold otherwise available public
benefits from religious organizations. In Trinity Lutheran
Church of Columbia, Inc. v. Comer , 582 U. S. ___
(2017), we considered a Missouri program that offered grants to
qualifying nonprofit organizations that installed cushioning
playground surfaces made from recycled rubber tires. The Missouri
Department of Natural Resources maintained an express policy of
denying such grants to any applicant owned or controlled by a
church, sect, or other religious entity. The Trinity Lutheran
Church Child Learning Center applied for a grant to resurface its
gravel playground, but the Department denied funding on the ground
that the Center was operated by the Church.

															We deemed it “unremarkable in light of our prior
decisions” to conclude that the Free Exercise Clause did not permit
Missouri to “expressly discriminate[ ] against otherwise
eligible recipients by disqualifying them from a public benefit
solely because of their religious character.” Id. , at
___–___ (slip op., at 9–10). While it was true that Trinity
Lutheran remained “free to continue operating as a church,” it
could enjoy that freedom only “at the cost of automatic and
absolute exclusion from the benefits of a public program for which
the Center [was] otherwise fully qualified.” Id., at ___
(slip op., at 10) (citing McDaniel v. Paty , 435 U.S.
618 , 626 (1978) (plurality opinion)). Such discrimination, we
said, was “odious to our Constitution” and could not stand. 582
U. S. , at ___ (slip op., at 15).

															Two Terms ago, in Espinoza , we reached
the same conclusion as to a Montana program that provided tax
credits to donors who sponsored scholarships for private school
tuition. The Montana Supreme Court held that the program, to the
extent it included religious schools, violated a provision of the
Montana Constitution that barred government aid to any school
controlled in whole or in part by a church, sect, or denomination.
As a result of that holding, the State terminated the scholarship
program, preventing the petitioners from accessing scholarship
funds they otherwise would have used to fund their children’s
educations at religious schools.

															We again held that the Free Exercise Clause
forbade the State’s action. The application of the Montana
Constitution’s no-aid provision, we explained, required strict
scrutiny because it “bar[red] religious schools from public
benefits solely because of the religious character of the schools.” Espinoza , 591 U. S., at ___ (slip op., at 9). “A State
need not subsidize private education,” we concluded, “[b]ut once a
State decides to do so, it cannot disqualify some private schools
solely because they are religious.” Id., at ___ (slip op.,
at 20).

															B

															The “unremarkable” principles applied in Trinity Lutheran and Espinoza suffice to resolve this
case. Maine offers its citizens a benefit: tuition assistance
payments for any family whose school district does not provide a
public secondary school. Just like the wide range of nonprofit
organizations eligible to receive playground resurfacing grants in Trinity Lutheran , a wide range of private schools are
eligible to receive Maine tuition assistance payments here. And
like the daycare center in Trinity Lutheran , BCS and Temple
Academy are disqualified from this generally available benefit
“solely because of their religious character.” 582 U. S., at
___ (slip op., at 10). By “condition[ing] the availability of
benefits” in that manner, Maine’s tuition assistance program—like
the program in Trinity Lutheran —“effectively penalizes the
free exercise” of religion. Ibid. (quoting McDaniel ,
435 U. S., at 626 (plurality opinion)).

															Our recent decision in Espinoza applied
these basic principles in the context of religious education that
we consider today. There, as here, we considered a state benefit
program under which public funds flowed to support tuition payments
at private schools. And there, as here, that program specifically
carved out private religious schools from those eligible to receive
such funds. While the wording of the Montana and Maine provisions
is different, their effect is the same: to “disqualify some private
schools” from funding “solely because they are religious.” 591
U. S., at ___ (slip op., at 20). A law that operates in that
manner, we held in Espinoza , must be subjected to “the
strictest scrutiny.” Id. , at ___–___ (slip op., at
11–12).

															To satisfy strict scrutiny, government action
“must advance ‘interests of the highest order’ and must be narrowly
tailored in pursuit of those interests.” Church of Lukumi Babalu
Aye, Inc. v. Hialeah , 508 U.S.
520 , 546 (1993) (quoting McDaniel , 435 U. S., at
628 (plurality opinion)). “A law that targets religious conduct for
distinctive treatment . . . will survive strict scrutiny
only in rare cases.” 508 U. S., at 546.

															This is not one of them. As noted, a neutral
benefit program in which public funds flow to religious
organizations through the independent choices of private benefit
recipients does not offend the Establishment Clause. See Zelman , 536 U. S., at 652–653. Maine’s decision to
continue excluding religious schools from its tuition assistance
program after Zelman thus promotes stricter separation of
church and state than the Federal Constitution requires. See also post, at 4 (Breyer, J., dissenting) (States may choose “not
to fund certain religious activity . . . even when the
Establishment Clause does not itself prohibit the State from
funding that activity”); post, at 1 (Sotomayor, J.,
dissenting) (same point).

															But as we explained in both Trinity
Lutheran and Espinoza , such an “interest in separating
church and state ‘more fiercely’ than the Federal Constitution
. . . ‘cannot qualify as compelling’ in the face of the
infringement of free exercise.” Espinoza , 591 U. S., at
___ (slip op., at 18) (quoting Trinity Lutheran , 582
U. S., at ___ (slip op., at 14)); see also Widmar v. Vincent , 454 U.S.
263 , 276 (1981) (“[T]he state interest . . . in
achieving greater separation of church and State than is already
ensured under the Establishment Clause . . . is limited
by the Free Exercise Clause.”). Justice Breyer stresses the
importance of “government neutrality” when it comes to religious
matters, post , at 13, but there is nothing neutral about
Maine’s program. 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 antiestablishment
interest does not justify enactments that exclude some members of
the community from an otherwise generally available public benefit
because of their religious exercise.[ 1 ]*

															III

															The First Circuit attempted to distinguish our
precedent by recharacterizing the nature of Maine’s tuition
assistance program in two ways, both of which Maine echoes before
this Court. First, the panel defined the benefit at issue as the
“rough equivalent of [a Maine] public school education,” an
education that cannot include sectarian instruction. 979
F. 3d, at 44; see also Brief for Respondent 22. Second, the
panel defined the nature of the exclusion as one based not on a
school’s religious “status,” as in Trinity Lutheran and Espinoza , but on religious “uses” of public funds. 979
F. 3d, at 38–40; see also Brief for Respondent 35. Neither of
these formal distinctions suffices to distinguish this case from Trinity Lutheran or Espinoza , or to affect the
application of the free exercise principles outlined above.

															A

															The First Circuit held that the “nonsectarian”
requirement was constitutional because the benefit was properly
viewed not as tuition assistance payments to be used at approved
private schools, but instead as funding for the “rough equivalent
of the public school education that Maine may permissibly require
to be secular.” 979 F. 3d, at 44. As Maine puts it, “[t]he
public benefit Maine is offering is a free public education.” Brief
for Respondent 1–2.

															To start with, the statute does not say anything
like that. It says that an SAU without a secondary school of its
own “shall pay the tuition . . . at the public school or
the approved private school of the parent’s choice at which the
student is accepted.” Me. Rev. Stat. Ann., Tit. 20–A, §5204(4). The
benefit is tuition at a public or private school,
selected by the parent, with no suggestion that the “private
school” must somehow provide a “public” education.

															This reading of the statute is confirmed by the
program’s operation. The differences between private schools
eligible to receive tuition assistance under Maine’s program and a
Maine public school are numerous and important. To start with the
most obvious, private schools are different by definition because
they do not have to accept all students. Public schools generally
do. Second, the free public education that Maine insists it is
providing through the tuition assistance program is often not free. That “assistance” is available at private schools
that charge several times the maximum benefit that Maine is willing
to provide. See Stipulated Record, Exh. 2, in No. 1:18–cv–327 (Me.,
Mar. 12, 2019), ECF Doc. 24–2, p. 11; Brief for Respondent 32.

															Moreover, the curriculum taught at participating
private schools need not even resemble that taught in the Maine
public schools. For example, Maine public schools must abide by
certain “parameters for essential instruction in English language
arts; mathematics; science and technology; social studies; career
and education development; visual and performing arts; health,
physical education and wellness; and world languages.” §6209. But
NEASC-accredited private schools are exempt from these
requirements, and instead subject only to general “standards and
indicators” governing the implementation of their own chosen
curriculum. Brief for Respondent 32; see NEASC, Standards—20/20
Process (rev. Aug. 2021), https://cis. neasc.org/standards2020
(requiring, for instance, that “[c]urriculum planning supports the
school’s core beliefs and the needs of the students,” and that the
“[w]ritten curriculum aligns horizontally and vertically”).

															Private schools approved by the Department
(rather than accredited by NEASC) are likewise exempt from many of
the State’s curricular requirements, so long as fewer than 60% of
their students receive tuition assistance from the State. For
instance, such schools need not abide by Maine’s “comprehensive,
statewide system of learning results,” including the “parameters
for essential instruction” referenced above, and they need not
administer the annual state assessments in English language arts,
mathematics, and science. §§2951(6), 6209; see also ECF Doc. 24–2,
at 9.

															There are other distinctions, too. Participating
schools need not hire state-certified teachers. Compare Me. Rev.
Stat. Ann., Tit. 20–A, §13003(1), with §13003(3). And the schools
can be single-sex. See ECF Doc. 24–2, at 11. In short, it is simply
not the case that these schools, to be eligible for state funds,
must offer an education that is equivalent—roughly or otherwise—to
that available in the Maine public schools.

															But the key manner in which the two educational
experiences are required to be “equivalent” is that they
must both be secular. Saying that Maine offers a benefit limited to
private secular education is just another way of saying that Maine
does not extend tuition assistance payments to parents who choose
to educate their children at religious schools. But “the definition
of a particular program can always be manipulated to subsume the
challenged condition,” and to allow States to “recast a condition
on funding” in this manner would be to see “the First Amendment
. . . reduced to a simple semantic exercise.” Agency
for Int’l Development v. Alliance for Open Society Int’l,
Inc. , 570 U.S.
205 , 215 (2013) (quoting Legal Services Corporation v. Velazquez , 531 U.S.
533 , 547 (2001)); see also Walz v. Tax Comm’n of City
of New York , 397 U.S.
664 , 696 (1970) (Harlan, J., concurring) (“The Court must
survey meticulously the circumstances of governmental categories to
eliminate, as it were, religious gerrymanders.”). Maine’s
formulation does not answer the question in this case; it simply
restates it.

															Indeed, were we to accept Maine’s argument, our
decision in Espinoza would be rendered essentially
meaningless. By Maine’s logic, Montana could have obtained the same
result that we held violated the First Amendment simply by
redefining its tax credit for sponsors of generally available
scholarships as limited to “tuition payments for the rough
equivalent of a Montana public education”—meaning a secular
education. But our holding in Espinoza turned on the
substance of free exercise protections, not on the presence or
absence of magic words. That holding applies fully whether the
prohibited discrimination is in an express provision like §2951(2)
or in a party’s reconceptualization of the public benefit.

															Maine may provide a strictly secular education
in its public schools. But BCS and Temple Academy—like numerous
other recipients of Maine tuition assistance payments—are not
public schools. In order to provide an education to children who
live in certain parts of its far-flung State, Maine has decided not to operate schools of its own, but instead to offer
tuition assistance that parents may direct to the public or private
schools of their choice. Maine’s administration of that
benefit is subject to the free exercise principles governing any
such public benefit program—including the prohibition on denying
the benefit based on a recipient’s religious exercise.

															The dissents are wrong to say that under our
decision today Maine “ must ” fund religious education. Post, at 7 (Breyer, J., dissenting). Maine chose to allow
some parents to direct state tuition payments to private schools;
that decision was not “forced upon” it. Post, at 4
(Sotomayor, J., dissenting). The State retains a number of options:
it could expand the reach of its public school system, increase the
availability of transportation, provide some combination of
tutoring, remote learning, and partial attendance, or even operate
boarding schools of its own. As we held in Espinoza , a
“State need not subsidize private education. But once a State
decides to do so, it cannot disqualify some private schools solely
because they are religious.” 591 U. S., at ___ (slip op., at
20).

															B

															The Court of Appeals also attempted to
distinguish this case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in
those cases were “solely status-based religious discrimination,”
while the challenged provision here “imposes a use-based
restriction.” 979 F. 3d, at 35, 37–38. Justice Breyer makes
the same argument. Post, at 8–9, 13–14 (dissenting
opinion).

															In Trinity Lutheran , the Missouri
Constitution banned the use of public funds in aid of “any church,
sect or denomination of religion.” 582 U. S., at ___–___ (slip
op., at 2–3). We noted that the case involved “express
discrimination based on religious identity,” which was sufficient
unto the day in deciding it, and that our opinion did “not address
religious uses of funding.” Id. , at ___, n. 3
(plurality opinion) (slip op., at 14, n. 3).

															So too in Espinoza , the discrimination at
issue was described by the Montana Supreme Court as a prohibition
on aiding “schools controlled by churches,” and we analyzed the
issue in terms of “religious status and not religious use.” 591
U. S., at ___ (slip op., at 10). Foreshadowing Maine’s
argument here, Montana argued that its case was different from
Trinity Lutheran’s because it involved not playground resurfacing,
but general funds that “could be used for religious ends by some
recipients, particularly schools that believe faith should
‘ permeate [ ]’ everything they do.” Id., at ___ (slip
op., at 11). We explained, however, that the strict scrutiny
triggered by status-based discrimination could not be avoided by
arguing that “one of its goals or effects [was] preventing
religious organizations from putting aid to religious uses .” Ibid. (emphasis added). And we noted that nothing in our
analysis was “meant to suggest that we agree[d] with [Montana] that
some lesser degree of scrutiny applies to discrimination against
religious uses of government aid.” Id., at ___ (slip op., at
12).

															Maine’s argument, however—along with the
decision below and Justice Breyer’s dissent—is premised on
precisely such a distinction. See Brief for Respondent 44 (“Maine
has not broadly excluded private schools simply because they are
affiliated with or controlled by a religious organization. Rather,
a school is excluded only if it promotes a particular faith and
presents academic material through the lens of that faith.”); 979
F. 3d, at 40 (Maine provision “does not bar schools from
receiving funding simply based on their religious identity” but
instead “based on the religious use that they would make of it in
instructing children.”); post , at 9 (Breyer, J., dissenting)
(“[U]nlike the circumstances present in Trinity Lutheran and Espinoza , it is religious activity, not religious labels,
that lies at the heart of this case.”).

															That premise, however, misreads our precedents.
In Trinity Lutheran and Espinoza , we held that the
Free Exercise Clause forbids discrimination on the basis of
religious status. But those decisions never suggested that
use-based discrimination is any less offensive to the Free Exercise
Clause. This case illustrates why. “[E]ducating young people in
their faith, inculcating its teachings, and training them to live
their faith are responsibilities that lie at the very core of the
mission of a private religious school.” Our Lady of Guadalupe
School v. Morrissey-Berru , 591 U. S. ___, ___
(2020) (slip op., at 18); see also Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC , 565 U.S.
171 , 192 (2012).

															Any attempt to give effect to such a distinction
by scrutinizing whether and how a religious school pursues its
educational mission would also raise serious concerns about state
entanglement with religion and denominational favoritism. See Our Lady , 591 U. S., at ___ (slip op., at 26); Larson v. Valente , 456 U.S.
228 , 244 (1982). Indeed, Maine concedes that the Department
barely engages in any such scrutiny when enforcing the
“nonsectarian” requirement. See Brief for Respondent 5 (asserting
that there will be no need to probe private schools’ uses of
tuition assistance funds because “schools self-identify as
nonsectarian” under the program and the need for any further
questioning is “extremely rare”). That suggests that any status-use
distinction lacks a meaningful application not only in theory, but
in practice as well. In short, the prohibition on status-based
discrimination under the Free Exercise Clause is not a permission
to engage in use-based discrimination.

															Maine and the dissents invoke Locke v. Davey , 540 U.S.
712 (2004), in support of the argument that the State may
preclude parents from designating a religious school to receive
tuition assistance payments. In that case, Washington had
established a scholarship fund to assist academically gifted
students with postsecondary education expenses. But the program
excluded one particular use of the scholarship funds: the
“essentially religious endeavor” of pursuing a degree designed to
“train[ ] a minister to lead a congregation.” Id., at
721; Espinoza , 591 U. S., at ___ (slip op., at 13). We
upheld that restriction against a free exercise challenge,
reasoning that the State had “merely chosen not to fund a distinct
category of instruction.” Locke, 540 U. S., at 721.

															Our opinions in Trinity Lutheran and Espinoza , however, have already explained why Locke can be of no help to Maine here. Both precedents emphasized, as did Locke itself, that the funding in Locke was intended
to be used “to prepare for the ministry.” Trinity Lutheran ,
582 U. S., at ___ (slip op., at 12); see also Espinoza ,
591 U. S., at ___ (slip op., at 13); Locke , 540
U. S., at 725. Funds could be and were used for theology
courses; only pursuing a “vocational religious” degree was
excluded. Ibid. ; see also Trinity Lutheran , 582
U. S., at ___–___ (slip op., at 12–13) (explaining narrow
reach of Locke ); Espinoza , 591 U. S., at ___–___
(slip op., at 13–14) (same). Locke ’s reasoning expressly turned on
what it identified as the “historic and substantial state interest”
against using “taxpayer funds to support church leaders.” 540
U. S., at 722, 725. But as we explained at length in Espinoza , “it is clear that there is no ‘historic and
substantial’ tradition against aiding [private religious] schools
comparable to the tradition against state-supported clergy invoked
by Locke .” 591 U. S., at ___ (slip op., at 16). Locke cannot be read beyond its narrow focus on vocational
religious degrees to generally authorize the State to exclude
religious persons from the enjoyment of public benefits on the
basis of their anticipated religious use of the benefits.

															*  *  *

															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. The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion.

															It is so ordered. Notes 1 *Both dissents articulate a
number of other reasons not to extend the tuition assistance
program to BCS and Temple Academy, based on the schools’ particular
policies and practices. Post, at 15–16 (opinion of Breyer,
J.); post, at 4 (opinion of Sotomayor, J.). Maine rightly
does not attempt to defend its law on such grounds, however,
because the law rigidly excludes any and all sectarian schools
regardless of particular characteristics. See supra, at
3. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 20–1088

															_________________

															DAVID CARSON, as parent and next friend of O.
C., et al., PETITIONERS v. A. PENDER MAKIN

															on writ of certiorari to the united states
court of appeals for the first circuit

															[June 21, 2022]

															Justice Breyer, with whom Justice Kagan joins,
and with whom Justice Sotomayor joins except as to Part I–B,
dissenting.

															The First Amendment begins by forbidding the
government from “mak[ing] [any] law respecting an establishment of
religion.” It next forbids them to make any law “prohibiting the
free exercise thereof.” The Court today pays almost no attention to
the words in the first Clause while giving almost exclusive
attention to the words in the second. The majority also fails to
recognize the “ ‘play in the joints’ ” between the two
Clauses. See Trinity Lutheran Church of Columbia , Inc. v . Comer , 582 U. S. ___, ___ (2017) (slip
op., at 6). That “play” gives States some degree of legislative
leeway. It sometimes allows a State to further antiestablishment
interests by withholding aid from religious institutions without
violating the Constitution’s protections for the free exercise of
religion. In my view, Maine’s nonsectarian requirement falls
squarely within the scope of that constitutional leeway. I
respectfully dissent.

															I

															A

															The First Amendment’s two Religion Clauses
together provide that the government “shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof.” Each Clause, linguistically speaking, is “cast in
absolute terms.” Walz v. Tax Comm’n of City of New
York , 397 U.S.
664 , 668 (1970). The first Clause, the Establishment Clause,
seems to bar all government “sponsorship, financial support, [or]
active involvement . . . in religious activity,” while
the second Clause, the Free Exercise Clause, seems to bar all
“governmental restraint on religious practice.” Id. , at 668,
670. The apparently absolutist nature of these two prohibitions
means that either Clause, “if expanded to a logical extreme, would
tend to clash with the other.” Id. , at 668–669. Because of
this, we have said, the two Clauses “are frequently in tension,” Locke v. Davey , 540 U.S.
712 , 718 (2004), and “often exert conflicting pressures” on
government action, Cutter v. Wilkinson , 544 U.S.
709 , 719 (2005).

															On the one hand, the Free Exercise Clause
“ ‘protect[s] religious observers against unequal
treatment.’ ” Trinity Lutheran , 582 U. S.,
at ___ (slip op., at 6) (quoting Church of Lukumi Babalu
Aye , Inc. v. Hialeah , 508
U.S. 520 , 542 (1993); alteration in original). We have said
that, in the education context, this means that States generally
cannot “ba[r] religious schools from public benefits solely because
of the religious character of the schools.” Espinoza v. Montana Dept. of Revenue , 591 U. S. ___, ___ (2020)
(slip op., at 9); see Trinity Lutheran , 582 U. S., at
___–___ (slip op., at 9–10).

															On the other hand, the Establishment Clause
“commands a separation of church and state.” Cutter , 544
U. S., at 719. A State cannot act to “aid one religion, aid
all religions, or prefer one religion over another.” Everson v. Board of Ed. of Ewing , 330 U.S.
1 , 15 (1947). This means that a State cannot use “its public
school system to aid any or all religious faiths or sects in the
dissemination of their doctrines and ideals.” Illinois ex rel.
McCollum v. Board of Ed. of School Dist. No. 71 , Champaign Cty. , 333
U.S. 203 , 211 (1948). Nor may a State “adopt programs or
practices in its public schools . . . which ‘aid or
oppose’ any religion.” Epperson v. Arkansas , 393 U.S.
97 , 106 (1968). “This prohibition,” we have cautioned, “is
absolute.” Ibid. See, e.g. , McCollum , 333 U.S.
203 (no weekly religious teachings in public schools); Engel v. Vitale , 370 U.S.
421 (1962) (no prayers in public schools); School Dist. of
Abington Township v. Schempp , 374
U.S. 203 (1963) (no Bible readings in public schools); Epperson , 393 U.S.
97 (no religiously tailored curriculum in public schools); Wallace v. Jaffree , 472 U.S.
38 (1985) (no period of silence for meditation or prayer in
public schools); Lee v. Weisman , 505 U.S.
577 (1992) (no prayers during public school graduations); Santa Fe Independent School Dist. v. Doe , 530 U.S.
290 (2000) (no prayers during public school football
games).

															Although the Religion Clauses are, in practice,
often in tension, they nonetheless “express complementary values.” Cutter , 544 U. S., at 719. Together they attempt to
chart a “course of constitutional neutrality” with respect to
government and religion. Walz , 397 U. S., at 669. They
were written to help create an American Nation free of the
religious conflict that had long plagued European nations with
“governmentally established religion[s].” Engel , 370
U. S., at 431. Through the Clauses, the Framers sought to
avoid the “anguish, hardship and bitter strife” that resulted from
the “union of Church and State” in those countries. Id. , at
429; see also Committee for Public Ed. & Religious
Liberty v. Nyquist , 413 U.S.
756 , 795–796 (1973).

															The Religion Clauses thus created a compromise
in the form of religious freedom. They aspired to create a
“benevolent neutrality”—one which would “permit religious exercise
to exist without sponsorship and without interference.” Walz , 397 U. S., at 669. “[T]he basic purpose of these
provisions” was “to insure that no religion be sponsored or
favored, none commanded, and none inhibited.” Ibid. This
religious freedom in effect meant that people “were entitled to
worship God in their own way and to teach their children” in that
way. C. Radcliffe, The Law & Its Compass 71 (1960). We have
historically interpreted the Religion Clauses with these basic
principles in mind. See, e.g. , Nyquist , 413
U. S., at 771–772, 794–796; Walz , 397 U. S., at
668–670; Engel , 370 U. S., at 429–432.

															And in applying these Clauses, we have often
said that “there is room for play in the joints” between them. Walz , 397 U. S., at 669; see, e.g. , Norwood v. Harrison , 413 U.S.
455 , 469 (1973); Cutter , 544 U. S., at 719; Locke , 540 U. S., at 718–719; Trinity Lutheran ,
582 U. S., at ___ (slip op., at 6); Espinoza , 591
U. S., at ___ (slip op., at 6). This doctrine reflects the
fact that it may be difficult to determine in any particular case
whether the Free Exercise Clause requires a State to fund
the activities of a religious institution, or whether the
Establishment Clause prohibits the State from doing so.
Rather than attempting to draw a highly reticulated and complex
free-exercise/establishment line that varies based on the specific
circumstances of each state-funded program, we have provided
general interpretive principles that apply uniformly in all
Religion Clause cases. At the same time, we have made clear that
States enjoy a degree of freedom to navigate the Clauses’ competing
prohibitions. See, e.g. , Cutter , 544 U. S., at
713, 719–720. This includes choosing not to fund certain religious
activity where States have strong, establishment-related reasons
for not doing so. See, e.g. , Locke , 540 U. S.,
at 719–722. And, States have freedom to make this choice even when
the Establishment Clause does not itself prohibit the State from
funding that activity. Id. , at 719 (“[T]here are some state
actions permitted by the Establishment Clause but not required by
the Free Exercise Clause”). The Court today nowhere mentions, and I
fear effectively abandons, this longstanding doctrine.

															B

															I have previously discussed my views of the
relationship between the Religion Clauses and how I believe these
Clauses should be interpreted to advance their goal of avoiding
religious strife. See, e.g. , Espinoza , 591
U. S., at ___–___ (dissenting opinion) (slip op., at 13–20); Van Orden v. Perry , 545 U.S.
677 , 698–705 (2005) (opinion concurring in judgment); Zelman v. Simmons-Harris , 536
U.S. 639 , 717–729 (2002) (dissenting opinion). Here I simply
note the increased risk of religiously based social conflict when
government promotes religion in its public school system. “[T]he
prescription of prayer and Bible reading in the public schools,
during and as part of the curricular day, involving young
impressionable children whose school attendance is statutorily
compelled,” can “give rise to those very divisive influences and
inhibitions of freedom which both religion clauses of the First
Amendment” sought to prevent. Schempp , 374 U. S., at
307 (Goldberg, J., concurring).

															This potential for religious strife is still
with us. We are today a Nation with well over 100 different
religious groups, from Free Will Baptist to African Methodist,
Buddhist to Humanist. See Pew Research Center, America’s Changing
Religious Landscape 21 (May 12, 2015). People in our country adhere
to a vast array of beliefs, ideals, and philosophies. And with
greater religious diversity comes greater risk of religiously based
strife, conflict, and social division. The Religion Clauses were
written in part to help avoid that disunion. As Thomas Jefferson,
one of the leading drafters and proponents of those Clauses, wrote,
“ ‘to compel a man to furnish contributions of money for the
propagation of opinions which he disbelieves, is sinful and
tyrannical.’ ” Everson , 330 U. S., at 13. And as
James Madison, another drafter and proponent, said, compelled
taxpayer sponsorship of religion “is itself a signal of
persecution,” which “will destroy that moderation and harmony which
the forbearance of our laws to intermeddle with Religion, has
produced amongst its several sects.” Id. , at 68–69 (appendix
to dissenting opinion of Rutledge, J.). To interpret the Clauses
with these concerns in mind may help to further their original
purpose of avoiding religious-based division.

															I have also previously explained why I believe
that a “rigid, bright-line” approach to the Religion Clauses—an
approach without any leeway or “play in the joints”—will too often
work against the Clauses’ underlying purposes. Espinoza , 591
U. S., at ___ (dissenting opinion) (slip op., at 18); see also Van Orden , 545 U. S., at 669–700 (opinion concurring in
judgment). “[G]overnment benefits come in many shapes and sizes.” Espinoza , 591 U. S., at ___ (slip op., at 16)
(dissenting opinion). Not all state-funded programs that have
religious restrictions carry the same risk of creating social
division and conflict. In my view, that risk can best be understood
by considering the particular benefit at issue, along with the
reasons for the particular religious restriction at issue. See ibid. ; Trinity Lutheran , 582 U. S., at ___ (slip
op., at 1) (Breyer, J., concurring in judgment). Recognition that
States enjoy a degree of constitutional leeway allows States to
enact laws sensitive to local circumstances while also allowing
this Court to consider those circumstances in light of the basic
values underlying the Religion Clauses.

															In a word, to interpret the two Clauses as if
they were joined at the hip will work against their basic purpose:
to allow for an American society with practitioners of over 100
different religions, and those who do not practice religion at all,
to live together without serious risk of religion-based social
divisions.

															II

															The majority believes that the principles set
forth in this Court’s earlier cases easily resolve this case. But
they do not.

															We have previously found, as the majority points
out, that “a neutral benefit program in which public funds flow to
religious organizations through the independent choices of private
benefit recipients does not offend the Establishment Clause.” Ante , at 10 (citing Zelman , 536 U. S., at
652–653). We have thus concluded that a State may ,
consistent with the Establishment Clause, provide funding to
religious schools through a general public funding program if the
“government aid . . . reach[es] religious institutions
only by way of the deliberate choices of . . . individual
[aid] recipients.” Id. , at 652.

															But the key word is “may.” We have never
previously held what the Court holds today, namely, that a State must (not may ) use state funds to pay for religious
education as part of a tuition program designed to ensure the
provision of free statewide public school education.

															What happens once “may” becomes “must”? Does
that transformation mean that a school district that pays for
public schools must pay equivalent funds to parents who wish to
send their children to religious schools? Does it mean that school
districts that give vouchers for use at charter schools must pay
equivalent funds to parents who wish to give their children a
religious education? What other social benefits are there the
State’s provision of which means—under the majority’s
interpretation of the Free Exercise Clause—that the State must pay
parents for the religious equivalent of the secular benefit
provided? The concept of “play in the joints” means that courts
need not, and should not, answer with “must” these questions that
can more appropriately be answered with “may.”

															The majority also asserts that “[t]he
‘unremarkable’ principles applied in Trinity Lutheran and Espinoza suffice to resolve this case.” Ante , at 9.
Not so. The state-funded program at issue in Trinity
Lutheran provided payment for resurfacing school playgrounds to
make them safer for children. Any Establishment Clause concerns
arising from providing money to religious schools for the creation
of safer play yards are readily distinguishable from those raised
by providing money to religious schools through the program at
issue here—a tuition program designed to ensure that all children
receive their constitutionally guaranteed right to a free public
education. After all, cities and States normally pay for police
forces, fire protection, paved streets, municipal transport, and
hosts of other services that benefit churches as well as secular
organizations. But paying the salary of a religious teacher as part
of a public school tuition program is a different matter.

															In addition, schools were excluded from the
playground resurfacing program at issue in Trinity Lutheran because of the mere fact that they were “owned or controlled by a
church, sect, or other religious entity.” 582 U. S., at ___
(slip op., at 2). Schools were thus disqualified from receiving
playground funds “solely because of their religious character,” not
because of the “religious uses of [the] funding” they would
receive. Id. , at ___, ___, n. 3 (slip op., at 10, 14,
n. 3). Here, by contrast, a school’s “ ‘affiliation or
association with a church or religious institution . . .
is not dispositive’ ” of its ability to receive tuition funds.
979 F.3d 21, 38 (CA1 2020) (quoting then-commissioner of Maine’s
Department of Education). Instead, Maine chooses not to fund only
those schools that “ ‘promot[e] the faith or belief system
with which [the schools are] associated and/or presen[t] the
[academic] material taught through the lens of this
faith’ ”— i.e. , schools that will use public money for
religious purposes. Ibid. Maine thus excludes schools from
its tuition program not because of the schools’ religious character
but because the schools will use the funds to teach and promote
religious ideals.

															For similar reasons, Espinoza does not
resolve the present case. In Espinoza , Montana created “a
scholarship program for students attending private schools.” 591
U. S., at ___ (slip op., at 1). But the State prohibited
families from using the scholarship at any private school
“ ‘owned or controlled in whole or in part by any church,
religious sect, or denomination.’ ” Id. , at ___ (slip
op., at 3) (quoting Mont. Admin. Rule §42.4.802(1)(a) (2015)). As
in Trinity Lutheran , Montana denied funds to schools based
“expressly on religious status and not religious use”; “[t]o be
eligible” for scholarship funds, a school had to “divorce itself
from any religious control or affiliation.” 591 U. S. at
___–___ (slip op., at 10–11). Here, again, Maine denies tuition
money to schools not because of their religious affiliation, but
because they will use state funds to promote religious views.

															These distinctions are important. The very point
of the Establishment Clause is to prevent the government from
sponsoring religious activity itself, thereby favoring one religion
over another or favoring religion over nonreligion. See Engel , 370 U. S., at 430 (“Under [the Establishment
Clause] . . . government in this country, be it state or
federal, is without power to prescribe by law . . . any
program of governmentally sponsored religious activity”); Walz , 397 U. S., at 668 (“[F]or the men who wrote the
Religion Clauses . . . the ‘establishment’ of a religion
connoted . . . [any] active involvement of the sovereign
in religious activity”); Everson , 330 U. S., at 15
(States may not “pass laws which aid one religion, aid all
religions, or prefer one religion over another”). State funding of
religious activity risks the very social conflict based upon
religion that the Religion Clauses were designed to prevent. And,
unlike the circumstances present in Trinity Lutheran and Espinoza , it is religious activity, not religious labels,
that lies at the heart of this case.

															III

															A

															I turn now to consider the Maine program at
issue here. Maine’s Constitution guarantees Maine’s children a free
public education by requiring that all towns provide “for the
support and maintenance of public schools.” Art. VIII, pt. 1, §1;
see also Me. Rev. Stat. Ann., Tit. 20–A, §2(1) (2008). Because of
the State’s rural geography and dispersed population, however, over
half of Maine’s school districts do not operate public secondary
schools. App. 70. To fulfill its constitutional promise, Maine
created a program that provides some parents in these districts
with a monetary grant to help them educate their children “at the
public school or the approved private school of the parent’s
choice.” Me. Rev. Stat. Ann., Tit. 20–A, §5204(4) (Cum. Supp.
2021). The program’s “function is limited to authorizing the
provision of tuition subsidies to the parents of children who live
within school [districts] that simply do not have the resources to
operate a public school system, and whose children would otherwise
not be given an opportunity to receive a free public education.” Hallissey v. School Administrative Dist. No. 77 , 2000
ME 143, ¶16, 755 A.2d 1068 , 1073.

															Under Maine law, an “approved” private school
must be “nonsectarian.” §2951(2). A school fails to meet that
requirement (and is deemed “sectarian”) only if it is both (1) “ ‘associated with a particular faith or belief
system’ ” and also (2) “ ‘promotes the faith or
belief system with which it is associated and/or presents the
[academic] material taught through the lens of this faith.’ ”
979 F. 3d, at 38 (quoting Maine’s then-education
commissioner). To determine whether a school is sectarian, the
“ ‘focus is on what the school teaches through its curriculum
and related activities, and how the material is presented.’ ” Ibid. (emphasis deleted). “ ‘[A]ffiliation or
association with a church or religious institution . . .
is not dispositive’ ” of sectarian status. Ibid. The two private religious schools at issue here
satisfy both of these criteria. They are affiliated with a church
or religious organization. See App. 80, 91. And they also teach
students to accept particular religious beliefs and to engage in
particular religious practices.

															The first school, Bangor Christian, has
“educational objectives” that include “ ‘lead[ing] each
unsaved student to trust Christ as his/her personal savior and then
to follow Christ as Lord of his/her life,’ ” and
“ ‘develop[ing] within each student a Christian world view and
Christian philosophy of life.’ ” Id ., at 84. Bangor
Christian “does not believe there is any way to separate the
religious instruction from the academic instruction.” Id .,
at 85. Academic instruction and religious instruction are thus
“completely intertwined.” Ibid. Bangor Christian teaches in
its social studies class, for example, “ ‘that God has
ordained evangelism.’ ” Id ., at 87. And in science
class, students learn that atmospheric layers “ ‘are evidence
of God’s good design.’ ” Id ., at 89.

															The second school, Temple Academy, similarly
promotes religion through academics. Its “educational philosophy
‘is based on a thoroughly Christian and Biblical world
view.’ ” Id ., at 92. The school’s “objectives” include
“ ‘foster[ing] within each student an attitude of love and
reverence of the Bible as the infallible, inerrant, and
authoritative Word of God.’ ” Ibid. And the school’s
“ ‘academic growth’ objectives” include “ ‘provid[ing] a
sound academic education in which the subjec[t] areas are taught
from a Christian point of view,’ ” and “ ‘help[ing] every
student develop a truly Christian world view by integrating studies
with the truths of Scripture.’ ” Id ., at 93. Like
Bangor Christian, Temple “provides a ‘biblically-integrated
education,’ which means that the Bible is used in every subject
that is taught.” Id ., at 96. In mathematics classes, for
example, students learn that “a creator designed the universe such
that ‘one plus one is always going to be two.’ ” Ibid. The differences between this kind of education
and a purely civic, public education are important. “The religious
education and formation of students is the very reason for the
existence of most private religious schools.” Our Lady of
Guadalupe School v. Morrissey-Berru , 591 U. S. ___,
___ (2020) (slip op., at 2). “[E]ducating young people in their
faith, inculcating its teachings, and training them to live their
faith,” we have said, “are responsibilities that lie at the very
core of the mission of a private religious school.” Id. , at
___ (slip op., at 18). Indeed, we have recognized that the
“connection that religious institutions draw between their central
purpose and educating the young in the faith” is so “close” that
teachers employed at such schools act as “ministers” for purposes
of the First Amendment. Id. , at ___, ___ (slip op., at 2,
21); see also Hosanna-Tabor Evangelical Lutheran Church and
School v. EEOC , 565 U.S.
171 (2012).

															By contrast, public schools, including those in
Maine, seek first and foremost to provide a primarily civic
education. We have said that, in doing so, they comprise “a most
vital civic institution for the preservation of a democratic system
of government, and . . . the primary vehicle for
transmitting the values on which our society rests.” Plyler v. Doe , 457 U.S.
202 , 221 (1982) (citation and internal quotation marks
omitted). To play that role effectively, public schools are
religiously neutral, neither disparaging nor promoting any one
particular system of religious beliefs. We accordingly have, as
explained above, consistently required public school education to
be free from religious affiliation or indoctrination. Cf. Edwards v. Aguillard , 482 U.S.
578 , 583–584 (1987) (“The Court has been particularly vigilant
in monitoring compliance with the Establishment Clause in
elementary and secondary [public] schools”).

															Maine legislators who endorsed the State’s
nonsectarian requirement recognized these differences between
public and religious education. They did not want Maine taxpayers
to finance, through a tuition program designed to ensure the
provision of free public education, schools that would use state
money for teaching religious practices. See, e.g. , App. 104
(Maine representative stating that “[f]rom a public policy
position, we must believe that a religiously neutral classroom is
the best if funded by public dollars”); id. , at 106 (Maine
senator asserting that the State’s “limited [tax] dollars for
schools” should be spent on those “that are non-religious and that
are neutral on religion”). Underlying these views is the belief
that the Establishment Clause seeks government neutrality. And the
legislators thought that government payment for this kind of
religious education would be antithetical to the religiously
neutral education that the Establishment Clause requires in public
schools. Cf. Epperson , 393 U. S., at 106; McCollum , 333 U. S., at 211. Maine’s nonsectarian
requirement, they believed, furthered the State’s antiestablishment
interests in not promoting religion in its public school system;
the requirement prevented public funds—funds allocated to ensure
that all children receive their constitutional right to a free
public education—from being given to schools that would use the
funds to promote religion.

															In the majority’s view, the fact that private
individuals, not Maine itself, choose to spend the State’s money on
religious education saves Maine’s program from Establishment Clause
condemnation. But that fact, as I have said, simply permits Maine to route funds to religious schools. See, e.g. , Zelman , 536 U. S., at 652. It does not require Maine to spend its money in that way. That is because, as explained
above, this Court has long followed a legal doctrine that gives
States flexibility to navigate the tension between the two Religion
Clauses. Supra , at 4. This doctrine “recognize[s] that there
is ‘play in the joints’ between what the Establishment Clause
permits and the Free Exercise Clause compels.” Trinity
Lutheran , 582 U. S., at ___ (slip op., at 6) (quoting Locke , 540 U. S., at 718). This wiggle-room means that
“[t]he course of constitutional neutrality in this area cannot be
an absolutely straight line.” Walz , 397 U. S., at 669.
And in walking this line of government neutrality, States must have
“some space for legislative action neither compelled by the Free
Exercise Clause nor prohibited by the Establishment Clause,” Cutter , 544 U. S., at 719, in which they can navigate
the tension created by the Clauses and consider their own interests
in light of the Clauses’ competing prohibitions. See, e.g. , Walz , 397 U. S., at 669.

															Nothing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that
will use the funds to provide a religious education. As explained
above, this Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious
schools solely because of a school’s religious status —that
is, its affiliation with or control by a religious organization. Supra , at 7–9. But we have never said that the Free Exercise
Clause prohibits States from withholding funds because of the
religious use to which the money will be put. Cf. Trinity
Lutheran , 582 U. S., at ___ (slip op., at 12). To the
contrary, we upheld in Locke a State’s decision to deny
public funding to a recipient “because of what he proposed to
do ” with the money, when what he proposed to do was to “use the
funds to prepare for the ministry.” Trinity Lutheran , 582
U. S., at ___ (slip op., at 12); see also Espinoza , 591
U. S., at ___ (slip op., at 13) (characterizing Locke similarly). Maine does not refuse to pay tuition at private schools
because of religious status or affiliation. The State only denies
funding to schools that will use the money to promote religious
beliefs through a religiously integrated education—an education
that, in Maine’s view, is not a replacement for a civic-focused
public education. See 979 F. 3d, at 38. This makes Maine’s
decision to withhold public funds more akin to the state decision
that we upheld in Locke , and unlike the withholdings that we
invalidated in Trinity Lutheran and Espinoza .

															The Free Exercise Clause thus does not require
Maine to fund, through its tuition program, schools that will use
public money to promote religion. And considering the Establishment
Clause concerns underlying the program, Maine’s decision not to
fund such schools falls squarely within the play in the joints
between those two Clauses. Maine has promised all children within
the State the right to receive a free public education. In
fulfilling this promise, Maine endeavors to provide children the
religiously neutral education required in public school systems.
And that, in significant part, reflects the State’s
antiestablishment interests in avoiding spending public money to
support what is essentially religious activity. The Religion
Clauses give Maine the ability, and flexibility, to make this
choice.

															B

															In my view, Maine’s nonsectarian requirement
is also constitutional because it supports, rather than undermines,
the Religion Clauses’ goal of avoiding religious strife. Forcing
Maine to fund schools that provide the sort of religiously
integrated education offered by Bangor Christian and Temple Academy
creates a similar potential for religious strife as that raised by
promoting religion in public schools. It may appear to some that
the State favors a particular religion over others, or favors
religion over nonreligion. Members of minority religions, with too
few adherents to establish schools, may see injustice in the fact
that only those belonging to more popular religions can use state
money for religious education. Taxpayers may be upset at having to
finance the propagation of religious beliefs that they do not share
and with which they disagree. And parents in school districts that
have a public secondary school may feel indignant that only some families in the State—those families in the more rural
districts without public schools—have the opportunity to give their
children a Maine-funded religious education.

															Maine legislators who endorsed the State’s
nonsectarian requirement understood this potential for social
conflict. They recognized the important rights that religious
schools have to create the sort of religiously inspired curriculum
that Bangor Christian and Temple Academy teach. Legislators also
recognized that these private schools make religiously based
enrollment and hiring decisions. Bangor Christian and Temple
Academy, for example, have admissions policies that allow them to
deny enrollment to students based on gender, gender-identity,
sexual orientation, and religion, and both schools require their
teachers to be Born Again Christians. App. 82–83, 89, 93, 98.
Legislators did not want Maine taxpayers to pay for these
religiously based practices—practices not universally endorsed by
all citizens of the State—for fear that doing so would cause a
significant number of Maine citizens discomfort or displeasure.
See, e.g. , id. , at 101 (Maine representative noting
that “private religious schools discriminate against citizens of
the State of Maine,” such as by “not hir[ing] individuals whose
beliefs are not consistent with the school’s religious teachings,”
and asserting that “it is fundamentally wrong for us to fund” such
discrimination); id. , at 104 (Maine representative stating
that “the people of Maine” should not use “public money” to advance
“their religious pursuits,” and that “discrimination in religious
institutions” should not be funded “with my dollar”); id. ,
at 107 (Maine senator expressing concern that “public funds could
be used to teach intolerant religious views”). The nonsectarian
requirement helped avoid this conflict—the precise kind of social
conflict that the Religion Clauses themselves sought to avoid.

															Maine’s nonsectarian requirement also serves to
avoid religious strife between the State and the religious schools.
Given that Maine is funding the schools as part of its effort to
ensure that all children receive the basic public education to
which they are entitled, Maine has an interest in ensuring that the
education provided at these schools meets certain curriculum
standards. Religious schools, on the other hand, have an interest
in teaching a curriculum that advances the tenets of their
religion. And the schools are of course entitled to teach subjects
in the way that best reflects their religious beliefs. But the
State may disagree with the particular manner in which the schools
have decided that these subjects should be taught.

															This is a situation ripe for conflict, as it
forces Maine into the position of evaluating the adequacy or
appropriateness of the schools’ religiously inspired curriculum.
Maine does not want this role. As one legislator explained, one of
the reasons for the nonsectarian requirement was that “[g]overnment
officials cannot, and should not, review the religious teachings of
religious schools.” Ibid. Another legislator cautioned that
the State would be unable to “reconcile” the curriculum of “private
religious schools who teach religion in the classroom” with Maine
“standards . . . that do not include any sort of religion
in them.” Id ., at 102.

															Nor do the schools want Maine in this role.
Bangor Christian asserted that it would only consider accepting
public funds if it “did not have to make any changes in how it
operates.” Id ., at 90. Temple Academy similarly stated that
it would only accept state money if it had “in writing that the
school would not have to alter its admissions standards, hiring
standards, or curriculum.” Id ., at 99. The nonsectarian
requirement ensures that Maine is not pitted against private
religious schools in these battles over curriculum or operations,
thereby avoiding the social strife resulting from this
state-versus-religion confrontation. By invalidating the
nonsectarian requirement, the majority today subjects the State,
the schools, and the people of Maine to social conflict of a kind
that they, and the Religion Clauses, sought to prevent.

															I emphasize the problems that may arise out of
today’s decision because they reinforce my belief that the Religion
Clauses do not require Maine to pay for a religious education
simply because, in some rural areas, the State will help parents
pay for a secular education. After all, the Establishment Clause
forbids a State from paying for the practice of religion itself.
And state neutrality in respect to the teaching of the
practice of religion lies at the heart of this Clause. See, e.g. , Locke , 540 U. S., at 721–722 (noting that
there are “few areas in which a State’s antiestablishment interests
come more into play” than state funding of ministers who will “lead
[their] congregation[s]” in “religious endeavor[s]”). There is no
meaningful difference between a State’s payment of the salary of a
religious minister and the salary of someone who will teach the
practice of religion to a person’s children. At bottom, there is
almost no area “as central to religious belief as the shaping,
through primary education, of the next generation’s minds and
spirits.” Zelman , 536 U. S., at 725 (Breyer, J.,
dissenting). The Establishment Clause was intended to keep the
State out of this area.

															*  *  *

															Maine wishes to provide children within the
State with a secular, public education. This wish embodies, in
significant part, the constitutional need to avoid spending public
money to support what is essentially the teaching and practice of
religion. That need is reinforced by the fact that we are today a
Nation of more than 330 million people who ascribe to over 100
different religions. In that context, state neutrality with respect
to religion is particularly important. The Religion Clauses give
Maine the right to honor that neutrality by choosing not to fund
religious schools as part of its public school tuition program. I
believe the majority is wrong to hold the contrary. And with
respect, I dissent. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 20–1088

															_________________

															DAVID CARSON, as parent and next friend of O.
C., et al., PETITIONERS v. A. PENDER MAKIN

															on writ of certiorari to the united states
court of appeals for the first circuit

															[June 21, 2022]

															Justice Sotomayor, dissenting.

															This Court continues to dismantle the wall of
separation between church and state that the Framers fought to
build. Justice Breyer explains why the Court’s analysis falters on
its own terms, and I join all but Part I–B of his dissent. I write
separately to add three points.

															First, this Court should not have started down
this path five years ago. See Trinity Lutheran Church of
Columbia, Inc. v. Comer , 582 U. S. ___ (2017).
Before Trinity Lutheran , it was well established that “both
the United States and state constitutions embody distinct views” on
“the subject of religion”—“in favor of free exercise, but opposed
to establishment”—“that find no counterpart” with respect to other
constitutional rights. Locke v. Davey , 540 U.S.
712 , 721 (2004). Because of this tension, the Court recognized
“ ‘room for play in the joints’ between” the Religion Clauses,
with “some state actions permitted by the Establishment Clause but
not required by the Free Exercise Clause.” Id., at 718–719
(quoting Walz v. Tax Comm’n of City of New York , 397 U.S.
664 , 669 (1970)); see ante, at 4 (Breyer, J.,
dissenting). Using this flexibility, and consistent with a rich
historical tradition, see Trinity Lutheran , 582 U. S.,
at ___–___ (Sotomayor, J., dissenting) (slip op., at 11–16), States
and the Federal Government could decline to fund religious
institutions. Moreover, the Court for many decades understood the
Establishment Clause to prohibit government from funding religious
exercise.[ 1 ]

															Over time, the Court eroded these principles in
certain respects. See, e.g., Zelman v. Simmons-Harris , 536 U.S.
639 , 662 (2002) (allowing government funds to flow to religious
schools if private individuals selected the benefiting schools; the
government program was “entirely neutral with respect to religion”;
and families enjoyed a “genuine choice among options public and
private, secular and religious”). Nevertheless, the space between
the Clauses continued to afford governments “some room to recognize
the unique status of religious entities and to single them out on
that basis for exclusion from otherwise generally applicable laws.” Trinity Lutheran , 582 U. S., at ___ (Sotomayor, J.,
dissenting) (slip op., at 9). Trinity Lutheran veered sharply away from
that understanding. After assuming away an Establishment Clause
violation, the Court revolutionized Free Exercise doctrine by
equating a State’s decision not to fund a religious organization
with presumptively unconstitutional discrimination on the basis of
religious status. See id., at ___–___ (slip op., at 10–11).
A plurality, however, limited the Court’s decision to “express
discrimination based on religious identity” ( i.e., status),
not “religious uses of funding.” Id., at ___, n. 3
(slip op., at 14, n. 3). In other words, a State was barred
from withholding funding from a religious entity “solely because of
its religious character,” id., at ___ (opinion of the Court)
(slip op., at 14), but retained authority to do so on the basis
that the funding would be put to religious uses. Two Terms ago, the
Court reprised and extended Trinity Lutheran ’s error to hold
that a State could not limit a private-school voucher program to
secular schools. Espinoza v. Montana Dept. of
Revenue , 591 U. S. ___, ___ (2020) (slip op., at 9). The
Court, however, again refrained from extending Trinity
Lutheran from funding restrictions based on religious status to
those based on religious uses. Espinoza , 591 U. S., at
___–___ (2020) (slip op., at 9–12).

															As Justice Breyer explains, see ante, at
8–9, this status-use distinction readily distinguishes this case
from Trinity Lutheran and Espinoza . I warned in Trinity Lutheran , however, that the Court’s analysis could
“be manipulated to call for a similar fate for lines drawn on the
basis of religious use.” 582 U. S., at ___, n. 14
(dissenting opinion) (slip op., at 25, n. 14). That fear has
come to fruition: The Court now holds for the first time that “any
status-use distinction” is immaterial in both “theory” and
“practice.” Ante, at 17. It reaches that conclusion by
embracing arguments from prior separate writings and ignoring
decades of precedent affording governments flexibility in
navigating the tension between the Religion Clauses. As a result,
in just a few years, the Court has upended constitutional doctrine,
shifting from a rule that permits States to decline to fund
religious organizations to one that requires States in many
circumstances to subsidize religious indoctrination with taxpayer
dollars.

															Second, the consequences of the Court’s rapid
transformation of the Religion Clauses must not be understated.
From a doctrinal perspective, the Court’s failure to apply the
play-in-the-joints principle here, see ante, at 13–14
(Breyer, J., dissenting), leaves one to wonder what, if anything,
is left of it. The Court’s increasingly expansive view of the Free
Exercise Clause risks swallowing the space between the Religion
Clauses that once “permit[ted] religious exercise to exist without
sponsorship and without interference.” Walz , 397 U. S.,
at 669.

															From a practical perspective, today’s decision
directs the State of Maine (and, by extension, its taxpaying
citizens) to subsidize institutions that undisputedly engage in
religious instruction. See ante, at 10–11 (Breyer, J.,
dissenting). In addition, while purporting to protect against
discrimination of one kind, the Court requires Maine to fund what
many of its citizens believe to be discrimination of other kinds.
See ante, at 16 (Breyer, J., dissenting) (summarizing Bangor
Christian Schools’ and Temple Academy’s policies denying enrollment
to students based on gender identity, sexual orientation, and
religion). The upshot is that Maine must choose between giving
subsidies to its residents or refraining from financing religious
teaching and practices.

															Finally, the Court’s decision is especially
perverse because the benefit at issue is the public education to
which all of Maine’s children are entitled under the State
Constitution. As this Court has long recognized, the Establishment
Clause requires that public education be secular and neutral as to
religion. See ante, at 2–3, 12 (Breyer, J., dissenting)
(collecting cases). The Court avoids this framing of Maine’s
benefit because, it says, “Maine has decided not to operate
schools of its own, but instead to offer tuition assistance that
parents may direct to the public or private schools of their choice.” Ante, at 14. In fact, any such “deci[sion],” ibid. , was forced upon Maine by “the realities of remote
geography and low population density,” ante, at 2, which
render it impracticable for the State to operate its own schools in
many communities.

															The Court’s analysis does leave some options
open to Maine. For example, under state law, school administrative
units (SAUs) that cannot feasibly operate their own schools may
contract directly with a public school in another SAU, or with an
approved private school, to educate their students. See Me. Rev.
Stat. Ann., Tit. 20–A, §§2701, 2702 (2008). I do not understand
today’s decision to mandate that SAUs contract directly with
schools that teach religion, which would go beyond Zelman ’s
private-choice doctrine and blatantly violate the Establishment
Clause. Nonetheless, it is irrational for this Court to hold that
the Free Exercise Clause bars Maine from giving money to parents to
fund the only type of education the State may provide consistent
with the Establishment Clause: a religiously neutral one. Nothing
in the Constitution requires today’s result.

															*  *  *

															What a difference five years makes. In 2017, I
feared that the Court was “lead[ing] us . . . to a place where
separation of church and state is a constitutional slogan, not a
constitutional commitment.” Trinity Lutheran , 582
U. S., at ___ (dissenting opinion) (slip op., at 27). Today,
the Court leads us to a place where separation of church and state
becomes a constitutional violation. If a State cannot offer
subsidies to its citizens without being required to fund religious
exercise, any State that values its historic antiestablishment
interests more than this Court does will have to curtail the
support it offers to its citizens. With growing concern for where
this Court will lead us next, I respectfully dissent. Notes 1 See, e.g., Everson v. Board of Ed. of Ewing , 330 U.S.
1 , 16 (1947) (“No tax in any amount, large or small, can be
levied to support any religious activities or institutions
. . . ”); Agostini v. Felton , 521 U.S.
203 , 222–223 (1997) (observing that government aid that
impermissibly “advanc[ed] . . . religion” was
constitutionally barred); Mitchell v. Helms , 530 U.S.
793 , 840 (2000) (O’Connor, J., concurring in judgment) (“[O]ur
decisions provide no precedent for the use of public funds to
finance religious activities” (internal quotation marks omitted));
see also Rosenberger v. Rector and Visitors of Univ. of
Va. , 515 U.S.
819 , 875–876 (1995) (Souter, J., dissenting) (chronicling
cases).

Summary: The Supreme Court ruled that Maine's restriction of tuition assistance to non-sectarian schools violated the Free Exercise Clause of the First Amendment. Maine's program provided tuition assistance to parents in school districts without public secondary schools, but the Court held that excluding religious schools from the program was unconstitutional. Dissenting opinions argued that the ruling violated the Establishment Clause and that Maine's program was consistent with the Constitution's anti-establishment interests.