The Supreme Court has spoken clearly, but many programs still discriminate.
Religious liberty has had a good run at the Supreme Court. Law professors Lee Epstein and Eric Posner reported in 2021 that religious claimants had enjoyed an 81% success rate at the high court since 2005. Yet assaults on religious freedom continue.
Colorado created a publicly funded universal pre-K program that excluded certain religious providers. Religious preschools filed suit, and on Oct. 20 a federal judge ruled that excluding them violates the First Amendment. Five days later, Orthodox Jewish families and schools asked a federal appeals court to hold that California’s special-education policies unconstitutionally discriminated against them. On Nov. 6, a federal court in Minnesota considered a free-exercise challenge to a new law that prevents some religious colleges from participating in a dual-enrollment program, under which high-school students earn tuition-free college credit. Two weeks later, on Nov. 21, a Christian school filed a lawsuit alleging that Vermont unconstitutionally expelled it from a tuition-assistance program for students in rural school districts. Catholic and Protestant schools filed two similar lawsuits earlier this year after being excluded from a nearly identical program in Maine.
The Supreme Court has clarified that when the government invites private organizations to advance public goals, it must include religious participants. The most recent example is Carson v. Makin (2022), which held that Maine violated the Free Exercise Clause by excluding religious schools from a school-choice program. This reaffirmed its reasoning in similar cases such as Trinity Lutheran Church v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020).
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Nicole Stelle Garnett is the John P. Murphy Foundation professor of law at University of Notre Dame and a senior fellow at the Manhattan Institute. Tim Rosenberger is a legal fellow at the Manhattan Institute. Based on a recent report.
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