Document Type
Article
Publication Date
2026
Publication Information
24 First Amend. L. Rev. 157 (2026).
Abstract
In a series of recent cases, the Supreme Court of the United States has made clear that the First Amendment's Free Exercise Clause prohibits religious discrimination in public benefit programs. That is, when the government creates a public benefit program, the Free Exercise Clause prohibits it from excluding private entities from participating because of their religious character or status or because they engage in religious conduct. This essay addresses two questions raised left unresolved by these cases and flags a third. The first question is, what is private? The religious nondiscrimination principle applies only when the government aids private conduct. But the line between governmental and private conduct is not always clear in the public benefit context. The second question is whether the nondiscrimination principle applies with equal force when the government directly funds private conduct, rather than when government funding flows to religious organizations as the result of a private intervening choice. The final question, which we flag but do not attempt to answer, is about the permissible range or regulations that can be imposed upon religious organizations as a condition of participating in public programs.
Recommended Citation
Nicole S. Garnett & John A. Meiser,
Two Questions for School-Choice Funding After Carson,
24 First Amend. L. Rev. 157 (2026)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1968