Note: This is an educational course, not legal advice.
Can public money reach religious schools? For decades the Lemon test made many forms of aid suspect. The law has shifted in two steps: aid that reaches religious schools through private choice is allowed, and since 2017, excluding religious schools from general programs can violate the Free Exercise Clause. This unit teaches the religion clauses as law: what the clauses say, the tests courts use and the holdings. It takes no position on any faith or on religion itself.
| Case | Program | Holding |
|---|---|---|
| Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) | a Missouri grant program for playground surfaces made of recycled tires excluded a church preschool | denying a public benefit solely because of religious status violates free exercise |
| Espinoza v. Montana Department of Revenue (2020) | a Montana tax-credit scholarship for private schools; the state court cut out religious schools under the state constitution's "no-aid" provision | once a state subsidizes private education, it may not disqualify schools because they are religious |
Why it works
Supporters of these rulings say that treating religious schools worse than other private schools in a general program is discrimination against religion, and that neutrality, not exclusion, is what the Establishment Clause requires. Critics, including the dissents in Trinity Lutheran and Espinoza, say the rulings force taxpayers to fund religious teaching and erode the separation the founders sought. The holdings do not require states to fund private schools at all; they govern programs a state chooses to create. In Locke v. Davey (2004) the Court upheld a state's choice not to fund degrees in devotional theology, a decision later cases have read narrowly.
Key idea
Zelman v. Simmons-Harris (2002) upheld vouchers chosen by parents (true private choice). Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020): a state that funds private schools or programs may not exclude religious ones because they are religious.
Worked example: A grant program
A state gives grants to private nonprofits to install solar panels but excludes churches. Under Trinity Lutheran?
- The program is a general public benefit.
- Churches are excluded solely because of their religious status.
- Trinity Lutheran held such exclusions violate free exercise (strict scrutiny applies, and the state's preference for more separation is not compelling).
Answer: The exclusion violates the Free Exercise Clause.
Worked example: No program at all
A state decides not to fund any private schools. Must it fund religious schools after Espinoza?
- Espinoza applies when a state chooses to subsidize private education.
- A state may fund only public schools; the Court said so in Espinoza.
Answer: No; the cases govern programs a state chooses to create.
Common mistake
Thinking the Establishment Clause forbids any public money from reaching religious schools. Aid through parents' independent choices is allowed (Zelman), and excluding religious schools from a general program can violate Free Exercise (Trinity Lutheran, Espinoza).