Who’s Afraid of Carson v. Makin?
abstract. How worried should progressives be about the Supreme Court’s latest ruling in favor of publicly funded religious schools? Maybe less than we have assumed. In this Essay, I argue that Carson v. Makin—which struck down Maine’s policy of excluding religious private schools from its publicly funded tuition-aid program—may have surprisingly limited repercussions for a cautiously hopeful reason. By enacting a statute that explicitly prohibits all private schools from discriminating against LGBTQ students, Maine’s progressive lawmakers simultaneously protected a vulnerable student population, limited church/state entanglement, and preserved the state’s commitment to public education. In other words, Carson teaches much about the Court’s strident efforts to shift the law further to the right. But its most important lesson may have more to do with how progressives can best respond to a Court that has forsaken us: through smart and impactful lawmaking.
These are dark times for progressives at the Supreme Court. With the Court’s conservative supermajority lurching the law rightward across a range of crucial issues—from voting rights to reproductive autonomy and gun safety to the future of the administrative state—few progressive causes seem safe. To many, the Court’s decision this Term in Carson v. Makin1represents yet another front in this seismic legal shift.2
Carson involved Maine’s long-established Town Tuitioning Program, which provides private-school tuition aid to parents in remote parts of the state where school officials have declined to operate traditional public high schools.3 Viewing this tuition-aid program as an extension of its own system of public education rather than an alternative to it, Maine limited participation to private schools that are “nonsectarian” in the same way as its public schools.4 Private schools incorporating religious instruction were thus ineligible for state funds.
In a 6-3 decision along partisan lines,5 the Supreme Court invalidated this limitation as a violation of the Free Exercise Clause. Because “[t]he State pays tuition for certain students at private schools” but excludes religious schools from participating, Chief Justice Roberts wrote for the Court, “[t]hat is discrimination against religion.”6
Progressive advocates have expressed great concern. Rachel Laser, the president of Americans United for Separation of Church and State, argued that Carson will “require the state to fund religious education at private schools with taxpayer dollars,” supporting “schools that teach creationism instead of science, theocracy instead of democracy and discrimination instead of acceptance of difference.”7 The Alliance for Justice raised a different yet equally compelling fear: “Requiring Maine to foot the bill for these religious private schools will take desperately-needed money away from the public schools . . . .”8 Still others have worried that Carson will require states to subsidize religious private schools’ discrimination against LGBTQ students.9
In this Essay, I challenge some—but only some—of the progressive hand-wringing over Carson v. Makin from an internal perspective. I, too, hold an abiding commitment to the essential values of church/state separation and educational equity. But Carson’s impact on those values is not as dire as some have suggested. For one thing, the decision will not actually force Maine—or any other state—to subsidize religious education or divert resources away from public schools. Maine remains free to eliminate its tuition-aid program and require district officials to operate public high schools for the roughly 4,500 students who currently receive aid.10 As the Court made clear just two years ago in Espinoza v. Montana Department of Revenue and then repeated in Carson, “[a] State need not subsidize private education.”11 More fundamentally, even if Maine continued its tuition-aid program, there are strong arguments that providing parents this kind of subsidy would not pose an intolerable threat to church/state separation or educational equity.12 That is the good news.
The bad news is that Carson does pose substantial danger to a third progressive value of equally vital significance: the right of LGBTQ students to be free from state-sponsored discrimination.13 The ruling creates the real prospect that state dollars intended to provide access to education will instead be used to bankroll discrimination against the very children the program is designed to assist. For example, one set of plaintiffs in Carson sought to use state funds to enroll their daughter at Bangor Christian School.14 Yet that school explicitly discriminates against gay and transgender students.15 The school’s student handbook avows that “[a]ny deviation from the sexual identity that God created will not be accepted.”16 This discriminatory policy is no mere abstraction. A recent graduate of the school recounts a “terrifying” encounter with the principal over their sexual orientation.17 “I can be Christian and be gay,” the student pleaded. “No that’s not right. You can’t,” the principal replied before leaving the student alone in a room to cry.18
Stories like these underscore why progressives are so worried about Carson—and why we are so angry at the Court’s role in the culture wars more broadly. It is one thing for the Court to deem religious schools victims of discrimination when Maine expresses a preference to fund only nonsectarian education.19 It is quite another to do so when those same schools are engaged in rank discrimination of their own against the very children they are supposed to serve.
The most significant aspect of Carson’s anti-LGBTQ outcome, however, is not its occurrence but its impermanence. Maine lawmakers, fully anticipating how the Court would likely rule, acted to preempt the problem of funding anti-LGBTQ schools.20 By amending the state’s antidiscrimination law to forbid any private school (whether secular or religious) that accepts public funds from discriminating based on a student’s sexual orientation or gender identity, legislators ensured that taxpayer dollars would never fund anti-LGBTQ private schools like Bangor Christian School.21 What is more, this statutory amendment has limited church/state entanglement and alleviated concerns over the diversion of public-school funding because religious private schools in Maine have declined thus far to participate in the aid program.22 The most important thing progressives should take away from Carson, in other words, may have less to do with the mounting ways in which the Court is harming society and more with how we should respond to render those harms temporary: through smart and impactful lawmaking.23
This Essay proceeds in two parts. Part I briefly recaps the Court’s unsurprising logic and outcome in Carson v. Makin. Part II then grapples with the three kinds of harms progressives have suggested will follow from it: erosion of church/state separation, the undermining of public education, and state-sanctioned discrimination against LGBTQ youth. I conclude by discussing Carson’s implications for the broader question of how progressives can respond to a Supreme Court that has forsaken us—and our most cherished values.
Carson v. Makin was perhaps the least surprising result of the 2021 Term. For starters, religious litigants routinely prevail at the Roberts Court. Professors Lee Epstein and Eric A. Posner recently found that religious plaintiffs have won an astounding eighty-three percent of cases.24 Carson was also no ordinary case pitting religious challengers against a state. Just two years earlier, the Court ruled in favor of the religious challengers in a substantially similar free-exercise case, Espinoza v. Montana Department of Revenue.25
Espinoza concerned a tuition-tax-credit scholarship program that Montana lawmakers enacted in 2015.26 Under the Montana program, private individuals and corporations could claim a dollar-for-dollar state tax credit for donations to nonprofit organizations that awarded private-school tuition scholarships to low-income families and children with disabilities.27 These programs are known as “neo-vouchers” to distinguish them from traditional voucher programs, in which states directly fund private-school tuition out of their own coffers. Both types of vouchers provide recipient families financial assistance in opting out of the traditional public-school system, but the neo-voucher approach uses tax credits rather than direct government expenditures.28 After the Montana Department of Revenue issued a rule stating that only secular private schools could participate in the neo-voucher program,29 a group of Christian parent plaintiffs filed suit alleging a Free Exercise Clause violation. The Supreme Court agreed with them. “[O]nce a state decides to [subsidize private education],” the majority held, the Free Exercise Clause forbids it to “disqualify some private schools solely because they are religious.”30
Espinoza’s outcome boded ill for Maine. Much like Montana’s tuition-tax-credit scholarship, Maine’s tuition-aid program offered public funds to certain families to enroll in a private school but limited this aid to nonsectarian schools.31 So when a group of Christian parents challenged Maine’s religious limitation on the same free-exercise theory, the state needed to find some way to distinguish its program from the one already struck down in Espinoza.
In Carson v. Makin, Maine focused on the purpose for which it established its tuition-aid program. Unlike Montana’s recently enacted tax-credit scholarship, Maine enacted its program in 1873 to ensure access to education for students who lived in parts of the state so remote that they lacked any public school.32 Maine thus reasoned that its tuition-aid program was an extension of its own system of public education, which must be nonsectarian under the Establishment Clause.33 When it refused to extend its particular system for providing public education to religious private schools, the state asserted, it was not discriminating against religion at all; it was simply declining to provide a benefit it had never offered (and indeed could not offer) to anyone—a religious education.
The Supreme Court was unpersuaded. Writing for the 6-3 majority, Chief Justice Roberts wrote that the benefit Maine was providing was not a public education at all but rather “tuition at a public or private school, selected by the parent, with no suggestion that the ‘private school’ must somehow provide a ‘public’ education.”34
In truth, the Chief had a point: Maine law described its program as offering “tuition . . . at the public school or the approved private school of the parent’s choice,”35 and the participating private schools did not have to follow a host of rules applicable to public schools. Most significantly, unlike public schools, the private schools eligible to receive Maine tuition aid did “not have to accept all students” and were “often not free”—meaning they lacked the quintessential characteristics of a public education.36 The primary public-school rule they did have to follow was the requirement to be nonsectarian.
The Chief’s identification of factors that make an education public or private are important because they inform the likely outcome of future disputes. In Carson, the fact that the state was funding private schools that were free to charge additional tuition and deny enrollment to different students suggested that the benefit Maine was offering was truly a private-school tuition-aid program, not a public education. But in a potential future case involving religious litigants who wish to receive taxpayer funds under a public charter-school program—a possibility the dissent explicitly flagged37—the same factors should lead to the opposite conclusion. For when states delegate their state constitutional duties to provide a public education to charter schools and fund them accordingly, the benefit they are funding is indeed a public education in the most significant respects: like traditional public schools, charter schools must not only be nonsectarian; they must also be free and open to all comers.38 Thus, when states provide funding to charter schools, they truly are funding the particular benefit of a public education—and their refusal to fund religious schools does not offend the Free Exercise Clause.39
In any event, Maine advanced a second argument for distinguishing its program from Montana’s, but the majority rejected it, too. In Espinoza, Montana had determined that the private school at issue was ineligible to participate based on its religious status—that is, its affiliation with a church or some other religious entity.40 The Court explicitly left open the question of whether a state could justify denying tuition aid to a private school based on whether the school would use those funds to provide religious instruction.41 So, Maine argued that its limitation was based on religious use rather than status.42
Yet again, the majority was unmoved. Even if Maine were discriminating based on use rather than status, it reasoned, that would be just as “offensive to the Free Exercise Clause”43 because “[e]ducating young people in their faith . . . lie[s] at the very core of the mission of a private religious school.”44
The majority opinion was not all bad news for Maine and supporters of church/state separation. In an important paragraph, Chief Justice Roberts explicitly argued that “[t]he State retains a number of options” if it wishes to avoid funding religious education. It could eliminate its tuition-aid program altogether and “expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or . . . operate boarding schools of its own.”45 But given that Maine hadn’t done so and had chosen instead to fund private education, “it cannot disqualify some private schools solely because they are religious.”46
Progressives have asserted three kinds of harms will follow from Carson: religious establishment, educational inequity, and LGBTQ discrimination. All three are serious and important; as a progressive (and former public-school teacher) myself, I hold a deep commitment to opposing all of them. Yet for reasons discussed below in Sections II.A and II.B, Carson does not necessarily impair the wall between church and state or efforts to improve educational opportunities for low-income children and children of color. The ruling does, though, endanger LGBTQ rights. However, it does so in a way that progressive lawmakers can quickly and effectively override. Section II.C discusses how Maine officials have done exactly that and proposes that other state legislatures follow suit.
Carson v. Makin, one progressive commentator writes, threatens to “blow a significant new hole in the wall separating church and state.”47 Because of the Court’s ruling, states will be “required to use taxpayer dollars to supplement strands of private religious education that many Americans would find deeply offensive.”48 Or as the nation’s leading church/state-separation advocacy group puts it, Carson turns “America’s foundational principle of religious freedom on its head” by “requiring the government to fund religious education.”49 This outcome is “revolutionary,” another commentator laments, and the stakes are “sky-high.”50 Scholars have expressed similar concerns about the future of taxpayer-funded religious education.51
I understand the human instinct to worry about worst-case scenarios. It is an instinct to which I have succumbed myself, particularly regarding the Supreme Court’s rightward trajectory.52 But fears that Carson will require every state to fund religious private education are overblown. Maine was required to open up its tuition-aid program to religious private schools only because it had chosen to offer aid to secular private schools in the first place. So moving forward, Maine—and any other state that wishes to avoid its taxpayer dollars being used to fund religious private education—can simply refrain from subsidizing private education, period.
Twenty-two states currently do exactly that: they provide no taxpayer subsidy whatsoever to families for private-school tuition.53 So if Maine decided to eliminate its tuition-aid program, it would hardly become an outlier. To be sure, that policy choice would create some administrative burden. A number of rural Maine school districts that currently offer no public high school to their residents would need to establish one or enter into a regional public-school compact with neighboring towns.54 But there are good reasons to think this burden will be neither widespread nor insurmountable. In 2017-18, the most recent year for which Maine has made data available, only 4,546 students across the entire state used publicly funded tuition aid to attend a private school.55 And just as importantly, if private schools find it feasible to operate and serve these students notwithstanding their remote geographic location, public-school districts can plausibly do the same.
Looking ahead, there is one way in which the Supreme Court could force every state to pay for religious inculcation. It could hold that a state’s choice to offer its residents a free, secular public education without also offering all residents a free, religious private-school education constitutes discrimination in violation of the Free Exercise Clause.56 That jarring possibility came up in oral argument in Espinoza,57 but the attorney for the religious plaintiffs in Espinoza disclaimed it.58 More to the point, all five conservative Justices in the Espinoza majority explicitly rejected the argument, too, holding unequivocally that “[a] State need not subsidize private education.”59 Maine and any other state that wishes not to fund religious instruction can simply take the Court up on that promise.60
There is another problem with the argument that Carson’s outcome vitiates the wall between church and state. Recall the basic structure of Maine’s tuition-aid program: qualifying parents receive a state subsidy that they then choose how to utilize. Some parents will choose to use it to enroll their children in a secular educational program. Others will choose to enroll their children in a religious school. In Zelman v. Simmons-Harris, the Supreme Court held that a school-voucher program with this structure does not violate the principle of church/state separation.61 “[W]here a governmental aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice,” the Court wrote, such a program “is not readily subject to challenge under the Establishment Clause.”62
Of course, some progressives might disagree with Zelman as a matter of first principles. On that view, merely permitting private persons to use government aid in a religious manner amounts to an impermissible establishment even if they are also free to use the aid in a secular fashion. But recent events call into question just how strongly progressives hold this view. For if this principle were truly a progressive article of faith, progressives would not have viewed Carson’s rewritten version of Maine’s tuition-aid program as the most significant religious establishment brought about in recent years. That dubious honor would belong instead to the American Rescue Plan Act of 2021 (ARPA)—a law passed with progressive support in both houses of Congress and signed by President Biden.63
One of the ARPA’s most popular provisions was its expansion of the Child Tax Credit. The law raised the credit from $2,000 to $3,600 for each child under the age of six and from $2,000 to $3,000 for children ages six to sixteen at an overall cost to the federal government of $110 billion.64 Even more significantly, the law made the tax credit fully refundable: parents would receive the amount of the full tax credit even if it exceeded their federal tax burden. The Treasury Department estimated that this change would result in a new federal subsidy being paid out to low-income parents of more than twenty-six million children.65 In effect, the ARPA created a new, federally funded parenthood benefit that recipient parents could spend however they saw fit.
After these tax-credit checks were issued, the Center on Budget Policy and Priorities surveyed families with incomes below $35,000 on how they utilized the new federal benefit.66 Forty percent of respondents reported that they used it to defray the costs of education, a category that included the cost of private-school tuition.67 These respondents were not asked to specify whether they used the tax credit to pay for tuition at a religious or secular school, but given the lower average tuition cost of religious schools,68 it is likely that many spent the new federal benefit at religious schools.
The upshot is that some meaningful number of the millions of families who received the fully refundable tax credit probably chose to spend it on tuition at a religious private school. Just like Maine’s tuition-aid program, then, the ARPA provided a government benefit directly to families, who then made independent choices as to how to spend it. Some used their taxpayer-funded aid in secular ways, others in religious ones.
Yet despite this structural similarity, I am not aware of a single progressive raising a church/state-separation objection to the fact that parents could use the new, fully refundable Child Tax Credit to pay for religious instruction.69 Progressives instead widely applauded the law. Vermont Senator Bernie Sanders called the ARPA “the most significant piece of legislation to benefit working people in the modern history of this country.”70 White House Press Secretary Jen Psaki hailed it as “the most progressive piece of legislation in history.”71 Many pointed to the Child Tax Credit specifically as a crucial achievement. House Speaker Nancy Pelosi called the credit “transformative,”72 and Democratic leaders touted it in major ad blitzes in battleground states.73 Perhaps these reactions reflect a reasonable belief that government-aid programs that leave individual families free to choose between religious and nonreligious uses do not actually batter the wall between church and state.
To be sure, one significant difference between the ARPA’s fully refundable Child Tax Credit and Maine’s tuition-aid program is that the former authorized a wider range of permissible secular uses. Thus, recipients used a significantly greater percentage of the tax credit on nonreligious ends such as food, shelter, and clothing. But for purposes of church/state separation, it’s not clear why the proportion of government aid that private individuals choose to use for religious ends is more significant than the absolute amount. Any other conclusion would suggest that a small state-aid program that provides $100 to individuals who then spend $60 of this amount on religious uses is more problematic than another state program that gives $100 million to private individuals who use $40 million for religious purposes. In my view, the better takeaway is that providing families a financial benefit that they may freely choose to spend on secular or religious purposes is not especially problematic from an establishment perspective.
I pause here for one final caution about the limits of what I have argued. My argument is that Carson, on its own, does not eviscerate church/state-separation principles because it does not actually require any state to fund religious education. But Carson is not an outlier ruling. It is one piece of a broader movement away from mid-twentieth-century principles of church/state separation, a move Professors Richard Schragger and Micah Schwartzman have powerfully criticized as reflecting a certain form of “religious antiliberalism.”74 I am persuaded by many of their concerns, in particular their worry about the growing “double-standard” under which an “equal treatment principle is being deployed in cases that benefit religious actors” (i.e., in cases like Carson) but “not where it works against them” (i.e., in the context of free-exercise claims where they seek special exemptions not available to secular actors).75 Progressives must resist that double standard; the important question is how. To my mind, it is by treating religious groups neutrally with respect to both government-funding programs and generally applicable laws—which is to say, permitting them to participate on equal terms in the former but denying them preferential treatment under the latter. But if the latter half of that symmetrical bargain is taken off the table by a Court motivated to overrule Employment Division v. Smith—the case establishing that the Free Exercise Clause does not require exemptions from “neutral” and “generally applicable” laws76—the first half should be off the table, too.
Some progressives have identified a second kind of harm in Carson. The case is “the latest in a series of efforts to privatize education through the courts,” writes the progressive Alliance for Justice.77 “Public money should go to public schools,” the Alliance continues, yet “[r]equiring Maine to foot the bill for these religious private schools will take desperately-needed money away from the public schools.”78 Leading scholars have questioned school-choice programs more generally for this very reason.79
Just as I do with the church/state-separation claim, I wholeheartedly agree with what I take to be the core value that underlies this critique: that America must do more to ensure that all children, but especially low-income children and children of color, have access to high-quality educational opportunities. As Katy Joseph of the Interfaith Alliance puts it, “Robust funding and inclusive approaches to education are necessary to ensure that these vital institutions can meet the needs of every child that walks through their doors.”80
The first problem with this critique, though, is that nothing about Carson actually jeopardizes funding for public education. As a result of the Court’s ruling, the grand total of money that will be taken away from any Maine public school and sent instead to a private school is $0. This is true because of the particular way in which Maine’s tuition-aid program is designed: a family is only eligible to receive tuition aid if there is no public high school in their school district.81 To the extent Maine law disadvantages public education, it’s not through the tuition-aid program; it’s by allowing school districts to opt out of operating a public school in the first place.
I don’t want to make too big a point out of the Maine-specific response to the public-school-funding critique. Even though Maine itself does not divert resources from any public school through its tuition-aid law, other states surely do through school-choice programs. In theory, Carson might require some of those states to permit religious schools to receive public funds that would otherwise be channeled to the public-school system.82
Even still, there is a more fundamental point for progressives when it comes to Carson’s educational-equity implications. The overarching progressive concern here ought to be advocating for Black and brown children and poor children to receive equitable educational opportunities vis-à-vis their white and more affluent peers. Sadly, the existing public system of K-12 education has not yet succeeded in providing these opportunities.83 Seen in this light, the argument that Carson undermines educational equity by diverting funding away from public schools is deeply contingent. It is persuasive only to the extent that spending more money on public schools—rather than on private school-choice programs targeted at low-income and minority children—improves these students’ educational prospects.
Progressives evaluating that question, though, often fall victim to the nirvana fallacy.84 When we compare public schools to private schools in the context of voucher programs, we conjure up images of public schools at their best (i.e. places of inclusion that prepare all children for academic and economic success) and compare them to private schools at their worst (i.e. institutions that put profit above students’ well-being).85 No doubt there are some public schools serving disadvantaged populations that fit this idealized image just as there are some private schools for which the opposite image is accurate. But fascinatingly, progressives quickly embrace a negative—and often more realistic—picture of public schools in other contexts, such as in debates over structural racism, the school-to-prison pipeline, and the racial and economic achievement gap.86
My point here is not that public schools are all bad or that they are all good but rather that public schools are but a means to a crucial end: equitable educational opportunities for children of color and low-income children.87 Whether public schools are the best means to that end is a question of empirical fact, not a question of subjectively held values or blind assumptions. And when considered evenhandedly, the evidence does not support the anti-school-choice picture that progressives often portray.
As an initial matter, the evidence is mixed as to whether the low-income and minority students who actually use school vouchers experience better academic outcomes in their private schools. Four recent studies have found statistically significant negative effects for voucher users on standardized test scores, but several earlier studies found statistically significant positive effects for Black students as a distinct subgroup.88 Other studies have shown either no effect or a positive effect on different outcomes, such as voucher users’ likelihood of obtaining a high-school diploma or enrolling in college.89 Studies also generally find that vouchers lead to higher parental satisfaction.90
But students who use state funds to enroll in private schools aren’t the only ones affected by voucher programs. One of the core arguments that voucher opponents advance is that voucher programs drain public schools of resources, thereby reducing the quality of education that is offered to the non-voucher-using students who remain behind.91 This claim, too, is subject to empirical assessment. And on this score, the evidence may surprise many progressives: a recent meta-analysis of the literature found that “[v]irtually all of the studies” analyzing the impact of voucher programs on public-school performance “find that public-school achievement increases with the intensity of treatment.”92 The evidence about vouchers may be mixed for students who use them, but it is clear for those who don’t: voucher programs exert positive competitive pressure on public schools.
All of these data lead to a broader conclusion: even if Carson did help divert money from public to private schools—a dubious proposition to begin with—that fact alone tells us little about the crucial progressive concern for educational equity. To the extent that school-choice programs actually positively influence public schools serving low-income and minority children, progressives would be mistaken to oppose them out of an uncritical opposition to private schools as a sector. Perhaps time and additional research will show that low-income children and children of color do better in the absence of any publicly funded private-school alternatives. As a graduate of Ohio public schools, a former public-school teacher, and the parent of a child enrolled in a public elementary school, that is certainly my hope. At present, though, progressives who assume that view risk hurting the very children whose educational futures we seek to improve.93
A third kind of harm created by Carson v. Makin is far more troubling. Some of the religious schools that may receive public funding after Carson openly discriminate against LGBTQ students.94 Bangor Christian School, discussed in the introduction, is one example.95 Temple Academy, where a second set of plaintiffs in Carson sought to enroll their children,96 is another. As Temple Academy’s head of school openly admitted, “Temple Academy will not admit a student who is homosexual” or transgender.97
Carson’s net result is thus that taxpayer dollars bearing the state’s imprimatur may be used to support discrimination against an already-vulnerable student population. LGBTQ children are attacked in our society, which all too often denies their right to exist on equal terms. For example, Texas Governor Greg Abbott recently called for the Texas Department of Family and Protective Services to investigate parents for child abuse if they provide gender-affirming care,98 and Florida passed a law banning classroom discussion of sexual orientation and gender identity.99 The Court’s decision, viewed against this backdrop, is especially troubling for LGBTQ rights.
When we evaluate the Court’s role in this broader problem, though, we must be clear about Carson’s surprisingly limited scope. The point is not to minimize the rampant problem of societal discrimination against LGBTQ youth; it is to be clear about the problem’s source. After all, if broader societal bigotry and our broken politics are to blame, then railing against Carson and the Court’s conservative supermajority might distract us from the real root cause.
Twenty-eight states and Washington, D.C., currently provide some form of publicly funded aid to students to attend K-12 private schools.100 Of those twenty-nine jurisdictions, twenty-six voluntarily permit religious schools to accept public funds independent of any Supreme Court ruling.101 The high correlation is unsurprising; the same conservative voters who generally favor school-choice policies are also likely to favor religious-school participation.
With just two notable exceptions,102 none of these twenty-six states prohibit participating private schools from discriminating against students based on sexual orientation or transgender identity, at least through their respective antidiscrimination statutes.103 Surprisingly, statutory protections against LGBTQ discrimination in private schools are lacking even in a handful of progressive-leaning states with school-choice programs, such as Illinois and Nevada.104
The lack of legal protections for LGBTQ students is deeply concerning and deserves a progressive policy intervention. But because these twenty-six states voluntarily provided state funds to discriminatory private schools before Carson, the Supreme Court did not create the problem. Put another way, even if Carson had come out in Maine’s favor, taxpayer funds could still be used to subsidize anti-LGBTQ discrimination in the twenty-six states. Fixing that problem has always required a state or federal legislative response, not a ruling by the Supreme Court.105
That said, the Supreme Court did create an LGBTQ-rights problem in three other states. Carson itself struck down Maine’s limits on public funds being sent to discriminatory private schools like Bangor Christian Schools and Temple Academy. And Espinoza led to the same outcome in Montana and Vermont.106 Because of the Court, students in these three states may now be denied enrollment in a state-funded private school because of their sexual orientation or gender identity.
That brings us to the most impactful point of this Essay: progressives can counteract this troubling development by enacting new legislation. More specifically, progressives can amend existing state antidiscrimination laws to prohibit any private school that receives state funding—whether it is secular or religious—from discriminating based on a student’s sexual orientation or gender identity.
That, it turns out, is exactly what Maine’s lawmakers did back in June 2021, even as Carson was pending on the Court’s docket. When the Court granted certiorari in the case, Maine’s antidiscrimination law did not afford LGBTQ youth any protections against discrimination by a religious school. While the state’s Human Rights Act (HRA) did forbid sexual-orientation discrimination by educational institutions (though not gender-identity discrimination), the HRA also exempted “any education facility owned, controlled or operated by a bona fide religious corporation, association or society” from that ban.107 So progressive legislators enacted a new bill adding gender identity to the HRA’s list of protected characteristics and narrowing the exemption to only those religious schools that “do not receive public funding.”108
The net result is that under Maine’s newly amended HRA, religious private schools that accept public funding are treated precisely the same as secular ones: no such school can discriminate against a student based on their sexual orientation or gender identity. This uniform approach makes sense as a matter of public policy since anti-LGBTQ discrimination is abhorrent no matter where it occurs. This approach is also sound as a matter of constitutional law because settled free-exercise doctrine provides that a neutral rule of general applicability passes muster.109
That said, the Court has recently shifted its free-exercise doctrine to afford greater protection to religious claimants by embracing a narrower conception of what counts as a generally applicable law, deeming even a single instance of more favorable treatment for a secular activity sufficient to trigger strict scrutiny.110 However, Maine’s law treats every secular private school identically to how it treats religious schools that accept public funding with zero exceptions: no such school may discriminate against LGBTQ youth under any circumstance. So, the law should be permissible under existing free-exercise doctrine. Of course, the Court may someday overturn Smith and grant religious institutions exemptions from even a genuinely neutral law.111 That is a harrowing possibility and one that would deserve vehement progressive opposition.112 Without such a revolution, though, Maine’s amendment to its HRA is a constitutional way to eliminate Carson’s harmful consequences for LGBTQ youth.
Maine’s legislative response should serve as a powerful model to progressive lawmakers elsewhere. Vermont lawmakers considered a bill earlier this year that would have required any private school wishing to participate in its tuition-aid program to comply with state antidiscrimination law on equal terms with Vermont public schools, including a ban against discrimination based on sexual orientation or gender identity.113 The bill passed in the Vermont Senate but stalled in the House as lawmakers awaited the Court’s decision in Carson; they should act swiftly to enact it in their next legislative session.114 Montana is, admittedly, a tougher slog. Its antidiscrimination law does not yet include any LGBTQ protections, and the state’s political climate makes this kind of change difficult to obtain—to say nothing of applying such a ban to religious schools.115 In that sense, then, LGBTQ youth in Montana might well be the lasting victims of the Court’s decisions in Espinoza and Carson.
But progressives have already begun to make up ground elsewhere. Shortly before Carson was decided, Maryland lawmakers enacted a bill that, like Maine’s, prohibits any “nonpublic primary or secondary school that receives state funds” from discriminating based on “sexual orientation [or] gender identity.”116 Progressive legislators in Nevada and Illinois, where state officials allow religious private schools to participate in existing school-choice programs, should support such legislation, too.
In other words, Carson may have been responsible for a modest number of additional students facing the very real—and very harmful—threat of discrimination. But there is no reason for the progressive response to be modest, too. No state (and certainly no progressive state) should allow its taxpayer funds to subsidize discrimination against LGBTQ youth, period. If Carson is the spark that brings about this much-needed policy reform, progressives will have won a meaningful victory in the face of a major Supreme Court defeat.
As the Supreme Court’s conservative supermajority veers the law further and further to the right, it is understandable that some progressives might react with a sense of helplessness. It is also understandable why others might go in the opposite direction and assail the Court itself, perhaps to the point of calling for structural court reform.117
Carson v. Makin—and Maine’s progressive legislative response to it—suggests another potential path forward. Sometimes, the best thing progressives can do after a Supreme Court defeat is to make the defeat irrelevant. This kind of answer is especially promising when the adverse decision at issue invalidates a progressive state law. For in such cases, progressive lawmakers can often enact other measures to protect important public interests.
These options won’t be available in every progressive defeat, of course. When the Court emasculates federal voting-rights legislation118 or upholds a conservative state law undermining established constitutional rights,119 powerful veto gates (e.g., the Senate filibuster) and harsh state political climates (e.g., Texas) may make progressive legislative responses infinitely more difficult to enact. These, then, are the cases in which progressives should let their fury rain down upon the Court like fire.
We should distinguish between these two kinds of cases—defeats that progressives can easily mitigate through effective lawmaking and defeats they cannot. Drawing this distinction can be useful for reasons beyond mapping out a post-defeat strategy. It can also inform our intuitions about judging in the first instance, particularly in the hard cases that divide our society. For if some blockbuster defeats are actually more tolerable to losing groups than others, precisely because of the availability of post-defeat options for the losing side, then perhaps that is a ground of decision the Court should rely on explicitly if it wishes to avoid all-out losers and protect its institutional legitimacy. I’ve argued elsewhere that the Court has done exactly that in a surprising (but sadly far from consistent) set of cases using a “least harm principle” that minimizes the harms its decisions inflict by ruling against the side with the greatest ability to protect its interests.120
Carson is consistent with this principle: even as it ruled against progressive causes, it left ample alternatives for progressives to protect them. Progressives shouldn’t be happy that the Court ruled against us, not by any means. But as Maine’s lawmakers have demonstrated, neither should we let our anger blind us to productive responses. That, in the end, is Carson’s most telling lesson. Sometimes, the best way to answer today’s conservative Supreme Court is with good, old-fashioned progressive lawmaking.
Professor of Law, University of California, Davis, School of Law. I thank Eshan Dabak, Cynthia Long, and the editors of the Yale Law Journal for helpful suggestions and edits to this essay.