Five cases that ended America's religious penalty in school aid

One extra ingredient is all it took. A state offers a scholarship, a tuition payment or a tax credit to help a family school its children, and the family may spend the money at a secular private school, a secular tutor or a secular academy of any kind. But the moment the family picks a school where the children also pray, the check is pulled back. Same child, same money, same math, and the answer changes from yes to no. It would have been laughed out of any barbershop in America.

That was not a rumor or a bureaucratic glitch. For a very long time it was the law in many states, written into constitutions, defended by attorneys general and treated by a lot of lawyers as simply what the Establishment Clause required. It took five Supreme Court decisions, spread across two decades, to knock it down one brick at a time. This post puts those five in order, with the dates, and then goes back to ask where the rule came from in the first place. The answer is not flattering to the people who wrote it.

The rule in plain words

Call it the religious penalty. The government is under no obligation to fund anyone's schooling in any particular way. But once it decides to create a program, the penalty says that a religious school, and the family that picks it, must be left out. Sometimes the exclusion was explicit, as in a program that said "no sectarian school." Sometimes it came from a state constitution clause that barred public money from anything religious.

Notice how the question shifts across the five cases. The first one asks whether the Constitution allows a state to include religious schools. The next four ask whether the Constitution lets a state exclude them. That is a big change. Allowing is permission. Excluding, when the program is otherwise open to everybody, is a penalty, and the Free Exercise Clause is the part of the First Amendment that deals with penalties on religion.

Keep that distinction in your pocket as we go. It is the thread through the whole story.

1875: where the penalty came from

Before the five cases, one date and one name. In 1875 James G. Blaine of Maine, then a leading member of the House of Representatives, introduced a proposed amendment to the Constitution that would have barred public money from going to schools under the control of a religious denomination. President Ulysses Grant had spoken about public schools that year in terms that made the subject a national one. The Blaine amendment passed the House but fell short of the two-thirds vote it needed in the Senate, so it never became part of the Constitution.

It did not need to. The idea spread into the states. Over the following decades many state constitutions picked up clauses with the same flavor, and Congress insisted on school provisions of its own as new states came into the Union. The context matters. The public schools of that era were in practice generally Protestant: the King James Bible was read, Protestant hymns were sung. Catholic immigrants, and Catholic bishops, objected, and in many places built their own schools. The Blaine movement was in large part aimed at those Catholic schools. A plurality of the Supreme Court said as much in Mitchell v. Helms in 2000, when Justice Thomas wrote that the hostility to aid for "pervasively sectarian" schools had a shameful pedigree, rooted in nativist anti-Catholic sentiment. If you want the long version of that history, read The Blaine Amendments and the Old Bigotry Still Sitting in State Constitutions.

So when a state lawyer in 2018 defended a no-religious-schools clause, he was defending, knowingly or not, a nineteenth-century rule with an ugly origin. Hold that thought.

2002: Zelman v. Simmons-Harris

The first brick came out in 2002, though it came out gently. In 1990s Cleveland, a state-run pilot program gave tuition aid to families in a troubled school district so they could pick a private school, secular or religious. Most of the private schools that took part turned out to be religious. Taxpayers sued, arguing that this was an establishment of religion. In Zelman v. Simmons-Harris, decided in June 2002 by a 5-4 vote with Chief Justice Rehnquist writing, the Court said no.

The reasoning is the reason the case matters. The program was neutral toward religion. It provided aid directly to families, and the families, not the government, decided where the money went. Rehnquist called it a program of true private choice. The fact that most families chose religious schools did not make the program an establishment, because that result flowed from thousands of private decisions and not from a government decision to favor religion.

Notice what Zelman did and did not decide. It said a state may include religious schools in a choice program without violating the Establishment Clause. It did not say a state must. That left room for the penalty to survive. It also gave the school choice movement the green light it needed, because the objection that choice is a church-state violation had just lost at the highest level. If you want to see how a voucher check actually flows once that objection is cleared, How a School Voucher Works, From the State Check to the Classroom Door walks the money from the state to the classroom door.

2004: Locke v. Davey, the detour

Now the setback, because an honest timeline includes the cases that went the other way. Washington State created a scholarship, the Promise Scholarship, for talented students. Joshua Davey qualified, enrolled at a Christian college and declared a double major, one of which was pastoral ministries. State law barred the scholarship from being used to pursue a degree in devotional theology. Davey sued.

In Locke v. Davey in 2004, the Court ruled against him by a 7-2 vote, again with Rehnquist writing. The Court said there is "play in the joints" between the two religion clauses, meaning that some actions the Establishment Clause permits are not required by the Free Exercise Clause. A state could decline to pay for the training of clergy without running afoul of free exercise. Justices Scalia and Thomas dissented.

Two points keep Davey from being the end of the story. First, the Court stressed how narrow the exclusion was. Washington's program let students attend pervasively religious schools and take religion classes; it simply would not fund a degree in devotional theology, which the Court tied to a long historical tradition of not funding the training of ministers. Second, the Court said the state's exclusion did not show the hostility toward religion that would be a problem. That sentence set up the next fights. If an exclusion does reflect hostility, or if it covers far more than the training of clergy, Davey does not save it.

2017: Trinity Lutheran v. Comer and a rubber playground

The third brick is the most vivid, because it involves an actual playground. Trinity Lutheran Church in Missouri ran a preschool and daycare, and its playground had a hard gravel surface that was unfriendly to small knees. The state had a program that gave grants to nonprofits to resurface playgrounds with recycled rubber from scrap tires. The church applied. The state's department ranked its application highly, then turned it down for one reason: a provision in the Missouri constitution barring public money for churches.

In Trinity Lutheran Church of Columbia, Inc. v. Comer, decided June 26, 2017, the Court ruled for the church by a 7-2 vote. Chief Justice Roberts wrote the opinion. The key move was the status of the applicant. The church was excluded not because of what it would do with the grant, which was to put down rubber, but because of what it was: a church. Denying a generally available public benefit solely because of religious identity, Roberts wrote, imposes a penalty on the free exercise of religion, and the state had no interest strong enough to justify it. This was about playground safety, not about funding worship.

Watch the footnote, because the footnote became famous. The Court said that the case involved only playground resurfacing. That caution invited an obvious question: if the Free Exercise Clause bars a penalty on identity for a playground, why not for a classroom? The next two cases answered it.

2020: Espinoza v. Montana Department of Revenue

Now we are at school aid in earnest. In 2015 Montana passed a program giving tax credits to people who donated to scholarship organizations, which then gave scholarships to children attending private schools. The Montana Department of Revenue adopted a rule, called Rule 1, that barred scholarship money from going to religious schools. The agency's reasoning came from a provision of the Montana constitution barring aid to any school controlled by a church or denomination.

Kendra Espinoza and other mothers whose children attended a Christian school in Kalispell sued. The Montana Supreme Court ruled that the no-aid provision of the state constitution required that the whole scholarship program be struck down, which meant nobody got a scholarship. The United States Supreme Court took the case and, on June 30, 2020, reversed by a 5-4 vote, with Chief Justice Roberts writing again.

The holding mattered in two ways. One, a state does not have to run a scholarship program at all, but once it does, it may not disqualify schools from it because they are religious. Two, the Court dealt with the Blaine inheritance directly. Montana had defended the no-aid provision as a long-standing tradition. The majority replied that a tradition of excluding religious schools from public aid did not arise until the second half of the nineteenth century, and that its history was bound up with anti-Catholic sentiment, so it was no reason to override the Free Exercise Clause. Justice Alito's concurrence set out the Blaine history at greater length.

Montana's lawyers had one more argument, the one that mattered most for the next case. They said the Montana rule did not discriminate on the basis of religious identity; it merely drew a line around use: scholarship money should not be used for religious education. The Court did not have to decide that point, because Rule 1 and the Montana provision were applied by reference to the religious character of the school. The question of use was left sitting on the table.

2022: Carson v. Makin

Maine has a lot of small, sparse towns, and some of them have never operated a public high school. For about a century and a half the state has dealt with this by having those towns pay tuition for their students at another school, public or private, chosen by the parents. Until 1981, parents could choose a religious school. In 1981, the state added a requirement that the private school be "nonsectarian," which meant that religious schools were out.

Parents in the program sued. In Carson v. Makin, decided June 21, 2022 by a 6-3 vote, the Court held for the families, with Chief Justice Roberts again writing. This time he closed the door on the use argument. Maine said it was fine because it was only excluding schools that would use the money for religious instruction. The majority answered that the Free Exercise Clause bars the state from excluding religious schools based on what they do, as well as on what they are. Since the state paid for a general education, and a religious school provides a general education alongside its religious instruction, the program could not carve out the religious part and use it as the reason to say no. Three justices dissented, arguing among other things that the state had a legitimate interest in not paying for religious instruction.

Put the five in a line and the progression is clean: permission in 2002, a permitted exclusion in 2004, then a bar on identity-based exclusion in 2017, a bar on a state constitution's religion-based exclusion in 2020, and a bar on use-based exclusion in 2022. That is the story of how a religious penalty went from a normal part of the law to something that had to stand on its own two feet in court.

The strongest objection

You should hear the other side's best argument in terms it would accept. It goes like this. First, the founding generation's fear was compelled support of religion, and Jefferson's Virginia statute called it tyranny to force a citizen to pay for the teaching of opinions he disbelieves. Second, a school whose purpose is to hand on a faith is not neutral about that faith, so public money in its budget funds the faith. Third, a no-aid rule protects religious schools from state strings, as well as protecting taxpayers. Fourth, if the Court can force states to include religious schools in a program, a state that wants to avoid the argument may simply close the program, leaving everyone worse off.

I take those seriously, so here is the answer, point by point.

1. Compelled support is a real principle, and it is why the family's choice matters. In every one of these programs the money follows the decision of the parent. The taxpayer is not paying the church; the taxpayer is helping a family pay for a child's schooling, and the family decides what kind. If a state taxed you to build a church, that would be the Virginia fight over again. Reimbursing a mother for the tuition she chooses is a different thing.
2. A school can be religious and still deliver math, reading and science. Carson said exactly this: the state paid for the education and could not carve out the faith and treat it as a disqualifier.
3. Strings are a fair worry, and conservatives should worry about them too. But the remedy for strings is a statute that limits them, not a rule that shuts a whole class of schools out of the program. And it is for the school to decide whether the strings are worth the money.
4. The closure argument admits too much. If the only way a state can run an education program is by excluding religious schools, then the state is saying its program depends on discrimination. A court is not required to bless that.

There is also an old point that gets lost: for decades the penalty fell most heavily on the families with the least money. A parent who can afford private tuition already has choice. A parent who cannot is the one who needed the program, and the penalty told that parent that the program was not for children whose families prayed. That is why I called it a penalty and not a technicality.

What these five cases do not do

A responsible timeline marks its limits.

• None of the five forces any state to start a choice program. A state with no program owes no one anything.
• None strips the Establishment Clause of meaning. Direct government endorsement of a religion, or religious instruction run by the state itself, is still barred.
• Each decision is about a specific kind of program. The details of how a state designs a voucher, an education savings account or a tax credit still matter, and the differences are laid out in Vouchers, ESAs, Tax Credits and Charters Sorted Out in One Table.
• Courts continue to work out harder questions about what a state may require of the schools it funds, such as testing, accreditation and admissions. Those are state-by-state questions.

And keep an eye on the record behind the rulings. The path in From Everson to Carson, the Court Cases That Opened the Door to Choice is longer than five cases, and the older doctrine that drove the exclusions, discussed in the three-part test that haunted churches for fifty years is finally gone, has its own story. If you want to see the arithmetic of what a program does for a family, Four Families, One Education Savings Account, and the Math of Choice runs it, and Seven School Choice Myths Your Neighbor Believes and What the Record Shows tests the claims you will hear at the next school-board meeting.

The bottom line

• A state may not tell a family that it can have public school aid only if the child does not attend a religious school. Three decisions from 2017 through 2022 say that, and Zelman in 2002 cleared the way.
• The old exclusion came out of the Blaine movement of the 1870s, which was driven in good part by hostility to Catholics. Knowing that origin is the best answer to anyone who calls the exclusion a neutral principle.
• Check your own state. Read the school aid statute and your state constitution's education article on the legislature's website, and look for a "nonsectarian" requirement. If one survives, ask your legislator why.
• If you are a parent in a state with a program, find out whether religious schools are eligible and what the rules are, because the program details differ widely.
• When someone says choice "funds churches," ask who made the decision. In every case above, it was the parent.