Supreme Court Decision in Carson a victory for religious liberty, school choice

On June 21, 2022, the United States Supreme Court ruled in favor of student opportunity to choose a religious education with a state-funded tuition assistance program!  Carson v. Makin concerned the oldest school choice program in the nation, Maine’s Town Tuitioning Program, which launched in 1873. The program offers tuition assistance for families living in school districts that do not have a secondary school to attend a private school of choice. While historically the program allowed students to choose religious education with their tuition dollars, in 1981 the state unjustly limited eligibility for the program to non-religious schools, restricting an eligible family’s ability to choose the education that best fits their child’s schooling needs.

In Carson, the U.S. Supreme Court ruled that state law restricting Maine’s program to only non-religious private schools violated the Free Exercise Clause of the Constitution by excluding schools from participating in the program solely because they are religious. This decision affirms the Court’s previous rulings in Trinity Lutheran v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020), that the state cannot discriminate against religious organizations from a widely accessible public benefit due to their religious exercise.

The U.S. Constitution and its First Amendment protect coherence between a person’s beliefs and their actions. Any suggestion that Carson’s affirmation of a families’ ability to use their child’s tuition dollars at religious schools transgressed a “boundary between church and state” is incorrect in its application, by both the standards of the First Amendment and historically by its original author, Thomas Jefferson and his “wall of separation” statement in his Letter to the Danbury Baptists (1802).

Carson joins several U.S. Supreme Court cases that vindicate education opportunity through school choice. In its landmark decision, Zelman v. Simmons-Harris (2002), the Court recognized that the Establishment Clause did not prohibit faith-based schools from participating in a voucher program that is “entirely neutral with respect to religion.”  In the Ohio program, the state provided assistance directly to families, and their share of scholarship funding was then “backpacked” with their child to their school of choice, thereby making the program neutral to religion. 

In Zelman’s majority opinion Chief Justice Rehnquist stated:

“Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients, not the government, whose role ends with the disbursement of benefits.”

In other words, the use of public dollars in voucher programs—and other school choice programs that use state-funds— where families determine where to use aid did not constitute an establishment of religion by the state.  

While school choice is repeatedly protected on the federal level, many state constitutions still prevent families’ ability to choose the best education option for their child with their share of education funding, due to notorious 19th century Blaine Amendments. , Born of bigotry, Blaine Amendments were used to prevent Catholic schools from using the public funding allocated to public “common schools,” which were Protestant at the time. U.S. Senator James G. Blaine from Maine attempted to pass a U.S. Constitutional amendment blocking public funding from Catholic schools. While his federal attempt failed, 37 states adopted Blaine Amendments into their state constitutions restricting public funding from “sectarian institutions.” In the 19th century, “sectarian” meant “Catholic,” but Blaines are now being interpreted to include all religious education.

The question Carson sought to answer concerned a state’s ability to explicitly exclude faith-based schools from their school choice programs and whether doing so violated the Free Exercise clause of the First Amendment.

In the previous cases Trinity Lutheran Church v. Comer and Espinoza v. Montana Department of Revenue, the Court ruled that excluding schools from a public benefit solely because they are religious was unconstitutional under the Free Exercise Clause.

In Trinity Lutheran, the Court ruled that a Missouri program providing funds to organizations for resurfacing playgrounds could not exclude a preschool and daycare operated by Trinity Lutheran Church because of its religious status. The Court determined that disqualifying recipients from an otherwise public benefit solely because of their religious character was to impose “a penalty on the free exercise of religion.”

 In Espinoza, the Court affirmed Trinity Lutheran and held that a no-aid provision that prevented families from using a tax credit scholarship at a religious school was unconstitutional under the Free Exercise Clause.

In his opinion in Carson, Chief Justice Roberts referenced Trinity Lutheran and Espinoza, stating:

“In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

The Court affirmed that the Maine program actively discriminates against religious institutions, saying:

 “…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.”

The Court’s decision refused the argument that distinguishes status-based discrimination from use-based discrimination. The opinion makes clear that discriminating against religious schools because they practice and teach their faith is just as much a violation of the Free Exercise Clause as discriminating against religious schools because of their status as religious institutions.

Drawing from the 2020 case Our Lady of Guadalupe School v. Morrissey-Berru (2020), the opinion affirms religious schools’ freedom to educate students in the faith, stating:

“[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.”

The Supreme Court therefore affirmed the right of religious schools to practice their faith in all aspects of their education.

Ultimately, Carson upheld religious liberty in education by prohibiting discrimination against religious organizations. This decision will likely lead to increased education opportunity for families across the nation!


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Most Reverend Stephen J. Berg

Bishop of the Diocese of Pueblo

Most Reverend Stephen Berg is a native of Miles City, Montana. He is the son of Connie and Jeanne Berg and the oldest of 10 children. He attended Catholic schools in Miles City, graduating from Sacred Heart High School in 1969. He earned a Bachelor of Music in Piano Performance from the University of Colorado, Boulder in 1973 and a Master of Music from Eastern New Mexico University in Portales in 1975. Upon graduation, Bishop-designate Berg taught music at Tarrant County College in Fort Worth. Subsequently, he worked 14 years in the retail nursery industry as vice president or general manager for divisions of Sunbelt Nursery, Inc. in Fort Worth, Southern California, Phoenix and Atlanta.

Bishop-designate Berg entered Assumption Seminary in San Antonio in 1993 where he received a Master of Divinity degree from Oblate School of Theology in 1999. He was ordained to the priesthood in 1999 by his maternal uncle Bishop Joseph L. Charron, C.PP.S, S.T.D, now the Bishop Emeritus of Des Moines. After his ordination, Bishop-designate Berg served as parochial vicar of St. Michael Catholic Church in Bedford, Texas from 1999 to 2001. In 2001, he became parochial vicar of St. John the Apostle Catholic Church in North Richland Hills, Texas. From 2002 to 2008, he was pastor of four rural parishes: St. Mary in Henrietta, St. Jerome in Bowie, St. William in Montague and St. Joseph in Nocona. In 2008, Bishop Kevin Vann appointed him vicar general of the Diocese of Fort Worth and concurrently he served as pastor of St. Peter the Apostle Catholic Church. In 2010, he became the Moderator of the Curia for the Diocese under Bishop Vann and also served as administrator of Holy Name of Jesus parish. Upon Bishop Vann’s installation as Bishop of Orange, then Monsignor Berg was elected diocesan administrator in December 2012 by the College of Consultors for the Diocese. Bishop Berg was ordained and installed as Bishop of Pueblo on February 27, 2014, by Denver Archbishop Samuel J. Aquila at a Mass in Pueblo.

Most Reverend James R. Golka

Bishop of the Diocese of Colorado Springs

Bishop Golka is the fourth of ten children born September 22, 1966, to Robert and Patricia Golka. He was born and raised in Grand Island, NE. He graduated from Grand Island Central Catholic High School in 1985. He graduated from Creighton University in 1989 with degrees in Philosophy and Theology. He then spent one year as a Jesuit lay missionary volunteer at Red Cloud Indian School on the Native American Pine Ridge Reservation in South Dakota.

After applying as a seminarian for his home diocese of Grand Island, Bishop Golka enjoyed seminary formation at the St. Paul Seminary, School of Divinity, of the University of St. Thomas in St. Paul, MN, where he received both a Masters of Divinity degree and a Masters of Arts degree in Sacramental Theology.

He was ordained a priest for the Diocese of Grand Island on June 3, 1994. He has served as a Parochial Vicar and Pastor in various parishes. He has served the diocese in various capacities including Director of Ongoing Formation of Clergy, Chair of the Personnel Board, member of the Diocesan Finance Council, the Presbyteral Council, and as a member of the Diocesan College of Consultors. At the time of his election, he was serving as Rector of the Cathedral of the Nativity of the Blessed Virgin Mary in Grand Island, NE. He was also serving as the Vicar General for the Diocese of Grand Island.

Bishop Golka says that he greatly enjoys the pastoral ministry which is provided in a parish setting. Working with people at all stages of life and allowing the gift of our Catholic faith to provide direction, support and new life is greatly rewarding. He also enjoys helping to provide ongoing formation events for the clergy of the diocese to care for the wellbeing of his brother priests.

Bishop Golka has worked with national consultants to better help parishes develop stewardship as a way of life. He has offered numerous retreats across the country preaching the blessings of ordering our lives in recognition that all we are and all we have is a gift from God. A guiding scripture passage is Psalm 116:12 which proclaims: “How can I repay the LORD for all the great good done for me?”

Bishop Golka was Ordained a Bishop in Colorado Springs on June 29, 2021. The Diocese of Colorado Springs has approximately 183,150 Catholics in 39 parishes and missions. The diocese has 82 priests, 85 Deacons and 15 men in seminary formation. The diocese and its parishes provide religious education and formation to more than 9,000 students. There is one private Catholic high school in the diocese that currently serves approximately 254 students, while an additional 1,325 students receive instruction through five parish-based elementary schools. In total, there are more than 5,414 Catholic youths under religious instruction in the Diocese of Colorado Springs.

Bishop Golka looks forward to continued growth and expansion in the diocese. With God’s grace and with the support of the faithful, the Diocese of Colorado Springs will know many more years of serving the mission of the Church in Colorado.

Most Reverend Bishop Jorge H. Rodríguez

Auxiliary Bishop of the Archdiocese of Denver

Bishop Rodriguez was born March 22, 1955, in Merida, Mexico, located in the state of Yucatan. He is the son of Nery Maria Novelo and Ramon Rodriguez (deceased), and he has one brother and four sisters, who live in Merida. In Merida he attended a primary school run by the Maryknoll Sisters, and then secondary and preparatory schools run by the Marist Brothers. When he finished high school, he joined the Legionaries of Christ to study and become a priest. He was ordained Dec. 24, 1987.

He was awarded a Doctorate in Sacred Theology by the Gregorian in Rome in 1994. He also has a licentiate in philosophy from the same pontifical university, and a diploma in Mariology from the Marianum in Rome.

He was the dean of the Theology Department of the Pontifical Athenaeum Regina Apostolorum in Rome (1994-1997). He has taught theology at the Pontifical Lateran University, at the Pontifical Institute Regina Mundi and at the Institute for Religious Sciences at the Pontifical Gregorian University in Rome.

In 1999, he was invited by then Archbishop Charles Chaput to teach in the newly launched St. John Vianney Theological Seminary in Denver, and to serve as Associate Pastor of St. Therese Parish in Aurora.

In 2002, he returned to Rome to serve as Associate Pastor of Stella Maris Parish in the Diocese of Rome, but then returned to Denver in 2006 to be a professor at St. John Vianney.

From 2007-2014, Father Rodriguez served as vice-rector of St. John Vianney Theological Seminary in Denver. He was incardinated as a priest of the Archdiocese of Denver in 2008.

Since 2014, he has served as pastor of Holy Cross Parish in Thornton, Colorado, and he continues to teach the seminarians as well as the permanent diaconate candidates.

Pope Francis appointed Father Rodriguez as an auxiliary bishop of the Archdiocese of Denver on August 25, 2016 and was ordained on November 4, 2016 on the feast of St. Charles Borromeo, the patron saint of bishops. He is also currently the pastor at St. Joseph parish in Denver.

He speaks Spanish, English and Italian, and reads French, and is the author of various theological publications.

Most Reverend Samuel J. Aquila

Archbishop of the Archdiocese of Denver

Samuel J. Aquila was born on September 24, 1950, in Burbank, California.  He was ordained to the priesthood in Denver, Colorado, on June 5, 1976, and served in parish ministry for 11 years.  In 1987, he began graduate studies at San Anselmo University in Rome, earning a Licentiate in Sacramental Theology in 1990.

He served as Director for the Office of Liturgy and Master of Ceremonies in the Archdiocese of Denver from 1990 until 1995.  He served the archdiocese as Co-director for Continuing Education for Priests, as an advisor to the Bishop’s Committee on the Liturgy, and as Assistant Secretary for Catholic Education before being named Secretary for Catholic Education, a position he held from 1995 until 1999.

From 1999-2001, he served as the first Rector of St. John Vianney Theological Seminary in Denver and Chief Executive Officer of Our Lady of the New Advent Theological Institute.  In 2000, he was named a Prelate of Honor by Pope John Paul II, receiving the honorary title of Monsignor.

He was appointed Coadjutor Bishop of Fargo on June 12, 2001, and his Episcopal Ordination Mass was celebrated at St. Mary’s Cathedral in Fargo on August 24, 2001.  On March 18, 2002, he became Bishop of Fargo, and from 2005 to 2006 he also acted as Apostolic Administrator for the Diocese of Sioux Falls. On July 18, 2012 he was installed as the Archbishop of Denver, returning to lead the Archdiocese where he had originally served as a priest for 25 years.

Archbishop Aquila serves on numerous boards and committees, including the Papal Foundation, the Bishops’ Advisory Council for the Institute for Priestly Formation and the Board of Trustees for the Augustine Institute.  He is a member of the United States Conference of Catholic Bishops, in which he has served as a member of various committees. Archbishop Aquila’s episcopal motto comes from the Blessed Virgin Mary’s instructions at Cana: “Do whatever he tells you (Jn 2:5).”