Carson v. Makin Is a Victory for Religious Liberty | City Journal
That Carson was not groundbreaking does not mean that it is not a landmark decision. On the contrary, the ruling represents the culmination of a battle for the equal treatment of faith-based schools that stretches back to the first half of the nineteenth century, when Catholic bishops began to demand public funds for Catholic schools on equality grounds, since public schools at the time were functionally Protestant and hostile to Catholic children. Those demands largely fell on deaf ears, and later, courts including the Supreme Court took a hard line against aid to children attending faith-based schools, invalidating on Establishment Clause grounds even programs providing modest financial benefits.
Beginning in the 1980s, the Supreme Court gradually began to embrace the view that government could include faith-based schools in religion-neutral public-benefit programs. When I first challenged the exclusion of religious schools from the Maine program ultimately invalidated in Carson (along with colleagues at the Institute for Justice, which represented the plaintiffs in Carson), it wasn t clear whether the Constitution even permitted states to include religious schools in choice programs, let alone whether it required them to do so. In 2002, in Zelman v. Simmons-Harris, the Court finally answered that first question in the affirmative, holding that the Establishment Clause does not preclude faith-based schools from being included among the range of options available to students participating in a private-choice program.
Amen.