Neutrality and School Choice: Two Cheers for Carson v. Makin

Abstract

In 2022 the Supreme Court decided the case of Carson v. Makin, a First Amendment free-exercise case centering on the constitutionality of the exclusion of religious schools from Maine’s school tuition assistance program. In a 6–3 decision, the Court held that the exclusion of religious schools violated the Free Exercise Clause of the Constitution. The dissenting opinion of Justice Breyer, in contrast, argued that the State acted within its power in excluding religious schools from the program. Notably, both opinions appeal to the concept of neutrality to justify their decision. In this article, I analyze the role neutrality plays in the case. I argue that the concept of neutrality does not operate as an absolute standpoint from which it is possible to judge whether public aid to religious schools is justified. Finally, I conclude that the majority’s opinion will result in further litigation.