Fortunately, in Carson v. Makin, the Supreme Court ruled that faith-based schools cannot be asked to shed their religious identity in order to participate in school-choice programs. As the majority opinion makes clear, Maine’s exclusion of faith-based schools from its tuition assistance program is neither constitutionally required nor constitutionally permissible.
Of course, before the twenty-first century, the state might have been forgiven for making an honest mistake. The Supreme Court’s Establishment Clause doctrine has been all over the map in the second half of the twentieth century. In 1980, many decisions seemed to prohibit students from using public funds to attend religious schools. Speaking of maps, for example, in Meek v. Pittenger (1975) and Wolman v. Walters (1977), the Court held that the Establishment Clause permitted states to provide secular textbooks, but not instructional materials such as maps, to faith-based schools. Seriously.
Thankfully, the Supreme Court’s Establishment Clause doctrine has taken a decidedly pro-religion turn in the past few decades. In decision after decision leading up to Carson, the Court has reiterated that the Constitution demands neutrality and prohibits hostility toward religious institutions and believers. Importantly, in Zelman v. Simmons-Harris (2002), the Court held that the Establishment Clause does not prohibit faith-based schools from participating in publicly funded private-school-choice programs.
— Public Discourse (@PublicDiscourse) July 6, 2022