Amicus Curiae Brief — St. Mary Catholic Parish, Littleton, Colorado, et al., Petitioners v. Lisa Roy, in Her Official Capacity as Executive Director of the Colorado Department of Early Childhood, et al.
Supreme Court briefJul 2, 2026
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No. 25-581
IN THE
Supreme Court of the United States
ST. MARY CATHOLIC PARISH, LITTLETON, COLORADO,
ET AL.,
v.
Petitioners,
LISA ROY, IN HER OFFICIAL CAPACITY AS EXECUTIVE
DIRECTOR OF THE COLORADO DEPARTMENT OF EARLY
CHILDHOOD, ET AL.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Tenth Circuit
Brief Of Amici Curiae Stephanie Barclay And
Mark Storslee In Support Of Petitioners
MATT GREGORY
Counsel of Record
ALY COX
JESSE SCHUPACK
LAURA STANLEY
Gibson, Dunn & Crutcher LLP
1700 M Street, N.W.
Washington, D.C. 20036
(202) 955-8500
mgregory@gibsondunn.com
Counsel for Amici Curiae
i
Table Of Contents
Interest of Amici Curiae.............................................. 1
Introduction and Summary of Argument ................... 1
Argument ..................................................................... 5
I.
Disestablishment prohibited coerced
tithes, not funding for religious schools ............... 5
II. Historical evidence confirms that the Free
Exercise Clause forbids the government
from denying otherwise available support
based on religion or its exercise ......................... 11
A. Early controversies demonstrate that the
Free Exercise Clause prohibits refusing
funds based on religion or its exercise ........... 12
B. Later deviations from these principles
reflected Protestant majoritarianism and
anti-Catholic bigotry, not the original
understanding of the Free Exercise Clause .. 17
III. The Court should approach the First
Amendment’s application to schoolfunding disputes consistent with the
original meaning of the Free Exercise
Clause .................................................................. 20
A. Carson faithfully applies the original
understanding of the Free Exercise Clause
to today’s government programs .................... 21
B. Even without specific historical analogues,
Carson faithfully applies the original
meaning and purpose of the Free Exercise
Clause.............................................................. 24
Conclusion ................................................................. 29
ii
Table Of Authorities
Page(s)
Cases
Carson v. Makin,
596 U.S. 767 (2022) .......................................... 1, 22
Espinoza v. Montana Dep’t of Revenue,
591 U.S. 464 (2020) ................................ 1, 4, 19, 23
Fulton v. City of Philadelphia,
593 U.S. 522 (2021) .............................................. 27
Kanter v. Barr,
919 F. 3d 437 (7th Cir. 2019) ............................... 28
Lemon v. Kurtzman,
403 U.S. 602 (1971) .............................................. 21
Locke v. Davey,
540 U.S. 712 (2004) .............................................. 28
Mitchell v. Helms,
530 U.S. 793 (2000) .............................................. 20
United States v. Hemani,
No. 24-1234, 608 U.S. ___
(U.S. June 18, 2026) ............................................. 28
Wolford v. Lopez,
No. 24-1046, 609 U.S. ___
(U.S. June 25, 2026) ............................................. 23
Statutes & Constitutional Provisions
Act of Apr. 1782, ch. VIII Md. Laws ........................... 8
iii
Page(s)
Act of Dec. 13, 1787, ch. XCVI .................................... 8
Act of Dec. 31, 1787, ch. XCV ...................................... 8
Act of Mar. 1, 1802, ch. MMCCXLVII,
17 Statutes at Large of Pennsylvania
81 (1915) ................................................................. 9
Act of Mar. 12, 1813, ch. LII, § IV, 1813
N.Y. Laws 53 ........................................................ 14
An Act for Establishing Religious
Freedom (1786) ...................................................... 8
N.Y. Const. of 1777, art. XXXVIII ............................ 13
Other Authorities
A Treaty Between the United States of
America and the Kaskaskia Tribe of
Indians, Kaskaskia Tribe-U.S., 7
Stat. 78 (1803) ...................................................... 10
Alexander Hamilton, Remarks on the
Quebec Bill: Part Two, Rivington’s
N.Y. Gazetteer, June 22, 1775 ............................... 6
Brief of Historians and Legal Scholars
as Amici Curiae in Support of
Respondent, Oklahoma Statewide
Charter Sch. Bd. v. Drummond, Nos.
24-394 & 24-396 (U.S. Apr. 7, 2025) ..................... 2
Charles L. Glenn, The American Model
of State and School (2012) ............................. 18–20
iv
Page(s)
Cong. Reg. (June 8, 1789) in
Documentary History of the First
Federal Congress of the United
States of America, March 4, 1789March 3, 1791 (Charlene Bangs
Bickford et al. eds., 1992) .................................... 25
Douglas Laycock, Churches,
Playgrounds, Government Dollars—
and Schools?, 131 Harv. L. Rev. 133
(2017) ................................................................ 5, 20
James Madison, Memorial and
Remonstrance Against Religious
Assessments (June 20, 1785) in The
Papers of James Madison (William
T. Hutchinson eds., 1973) .................................. 6–7
James Madison, Speech in Congress
Proposing Constitutional
Amendments (June 8, 1789) in
James Madison: Writings (Jack N.
Rakove ed., 1999) ................................................. 25
James Murray, The History of Religion:
Particularly of the Principal
Denominations of Christians
(London, C. Henderson et al. 1764) ....................... 6
Leo Raymond Ryan, Old St. Peter’s: The
Mother Church of Catholic New York
(1795–1935) (1935) ............................................... 14
v
Page(s)
Letter from James Madison to John
Carroll (July 20, 1804) in Peter
Guilday, The Life and Times of John
Carroll 1735-1815 (1922) ..................................... 15
Letter from Thomas Jefferson to the
Ursuline Nuns of New Orleans (July
13, 1804) in The Papers of Thomas
Jefferson (James P. McClure,
Martha J. King, Tom Downey, W.
Bland Whitley, Andrew J.B. Fagal,
& Merry Ellen Scofield eds., 2019) ................ 16–17
Mark Storslee, Church Taxes and the
Original Understanding of the
Establishment Clause, 169 U. Pa. L.
Rev. 111 (2020) ............................................. 5, 7–11
Mark Storslee, Free Exercise and
Funding, 101 Notre Dame L. Rev.
101 (2026) (forthcoming) ...................... 2, 11–23, 29
Mark Storslee, History and the School
Prayer Cases, 110 Va. L. Rev. 1619
(2024) .................................................................... 26
Memorial of Trustees of the
Congregation of Shearith Israel to
Legislature of the State of N.Y.
(Jan. 10, 1813) .......................................... 13, 15, 22
vi
Page(s)
Michael McConnell, Douglas Laycock,
Stephanie Barclay, & Mark Storslee,
The Court Shouldn’t Bruen-ize the
Free Exercise Clause, The Volokh
Conspiracy (Mar. 8, 2025).............................. 24–27
Michael W. McConnell, The Origins &
Historical Understanding of Free
Exercise of Religion, 103 Harv. L.
Rev. 1409 (1990) ................................................... 27
Nathan S. Chapman, Forgotten FederalMissionary Partnerships: New Light
on the Establishment Clause, 96
Notre Dame L. Rev. 677 (2020) ........................... 10
St. George Tucker, Blackstone’s
Commentaries: With Notes of
Reference to the Constitution and
Laws of the Federal Government of
the United States and the
Commonwealth of Virginia (1803) ...................... 24
Stephanie Barclay, Hemani: Proving the
Reason, Not Just Naming It,
SCOTUSBlog (June 22, 2026) ............................. 27
Stephanie Barclay, Making Laws for the
Human Mind: The Founding, Free
Exercise, and Parental Rights after
Mahmoud and Mirabelli
(forthcoming in Cornell L. Rev. 2026) ................. 24
vii
Page(s)
Stephanie Barclay, Spheres of Liberty
and Free Exercise: Lessons for Fulton
from Jefferson’s Correspondence with
Ursuline Nuns, The Volokh
Conspiracy (Nov. 2, 2020) .................................... 17
Stephanie H. Barclay, Brady Earley &
Annika Boone, Original Meaning
and the Establishment Clause: A
Corpus Linguistics Analysis, 61 Ariz.
L. Rev. 505 (2019) .............................................. 5–6
Stephanie H. Barclay, Replacing Smith,
Yale L.J. F. 436 (2023) ................................... 27–28
Stephanie Hall Barclay, Constitutional
Rights as Protected Reasons, 92 U.
Chi. L. Rev. 1179 (2025) ...................................... 28
Stephanie Hall Barclay, Constructing
Constitutional Rights, 138 Harv. L.
Rev. F. 140 (2025) .................................... 23, 25–26
Transcript of Oral Argument,
Oklahoma Statewide Charter Sch.
Bd. v. Drummond, Nos. 24-394 & 24396 (Apr. 30, 2025) ............................................... 23
1
Interest of Amici Curiae
Amici are legal scholars who have researched and
written extensively on the original meaning of the Religion Clauses of the First Amendment. Stephanie
Barclay (Georgetown Law) and Mark Storslee (University of North Carolina School of Law) both teach,
research, and publish in the fields of constitutional
history and religious freedom. Amici are committed
to a view of free exercise that protects all religious individuals and institutions and seeks to reconcile this
Court’s jurisprudence with the original meaning and
purpose of the Free Exercise Clause.1
Introduction and Summary of Argument
This Court has recently and repeatedly held that
once a state decides to “subsidize private education,”
the Free Exercise Clause commands that the state
“cannot disqualify some private schools solely because
they are religious” or exclude schools “on the basis of
their religious exercise.” Carson v. Makin, 596 U.S.
767, 785, 789 (2022) (quoting Espinoza v. Montana
Dep’t of Revenue, 591 U.S. 464, 487 (2020)). This
Court has also held that the Establishment Clause
does not prohibit including religious schools in neutral
funding programs. Id. at 781. Amici write to provide
the Court additional information about the original
meaning of the Free Exercise Clause relevant to this
case, and to rebut mistaken characterizations of that
history that have been brought before this Court.
1 Pursuant to Supreme Court Rule 37.6, counsel for amici states
that no counsel for a party authored this brief in whole or in part,
and no person or entity other than amici or their counsel made a
monetary contribution to this brief’s preparation or submission.
Academic affiliations are provided for identification purposes
only.
2
In a recent case, a group of scholars contended
that during the Founding and antebellum periods,
state and local governments often declined requests
from religious schools for public funding and were understood to be entitled to do so within the boundaries
of free exercise. Brief of Historians and Legal Scholars as Amici Curiae in Support of Respondent, Oklahoma Statewide Charter Sch. Bd. v. Drummond, Nos.
24-394 & 24-396 (U.S. Apr. 7, 2025) at 9–17. They argued “that ‘denial of funding was thought to be consistent with constitutional free-exercise principles
even by religious school leaders themselves,’ and thus,
outside the scope of the Free Exercise Clause today.”2
That argument rests on an incomplete account of
the historical record. As a starting place, the Founders did not view public funding of religious schools as
a form of religious establishment. But even more, the
best reading of the historical record refutes the idea
that Founding-era Americans understood the Free
Exercise Clause to permit the government to withhold
funding or other public benefits based on religion or
its exercise.
I. The story begins with disestablishment. At and
around the time of the First Amendment’s ratification, nearly every state that ended church taxes (consistent with the principles underlying the Establishment Clause) continued to provide financial support
to religious schools. Church taxes involved using coercive power to fund religion qua religion, in a way
equivalent to coerced tithes and thus coerced religious
2 Mark Storslee, Free Exercise and Funding, 101 Notre Dame L.
Rev. 101, 104 (2026) (forthcoming, available at https://papers.
ssrn.com/sol3/papers.cfm?abstract_id=6978698) (quoting Brief of
Historians, supra, at 17).
3
exercise. But where religious institutions provided
public services like education, Founding-era Americans understood funding for those endeavors as different in kind than coercive religious assessments, even
if schools may have also used the funds for religious
activities. This same pattern held true across northern, middle, and southern states, the federal government, and schools affiliated with majority and minority religions.
II. The early history surrounding free exercise is
the flip side of the coin and suggests a symmetrical
understanding of the Establishment and Free Exercise Clauses. Just as government could not extract
funds solely to fund religion in a way that resembled
a religious tithe, neither could it deny subsidies or
other forms of assistance based on a recipient’s religious practice.
A. In the early republic, efforts to selectively exclude some religious schools from funding or other
forms of aid were rare. When they did arise, however,
Founding-era Americans firmly rejected those efforts.
In New York, for instance, a Jewish school protested and prevailed after arguing that attempts to
deprive denominational schools of funding violated
the state’s free-exercise clause by conditioning funding on “a distinction in religious worship.” And
around the same period, James Madison and Thomas
Jefferson articulated a similar understanding, assuring a group of nuns that the “principles of the constitution” precluded denying them government support,
“whatever diversity of shade may appear in the religious opinions of our fellow citizens.” This evidence is
not without ambiguity. But on the best reading of the
historical record, the evidence suggests that Founding-era Americans viewed disestablishment and free
4
exercise as complementary: Just as government was
forbidden from extracting funds solely to finance religion, so it was also forbidden from denying funding
where the denial was based on religion or its exercise.
B. Later in the nineteenth century, religious conflict and anti-Catholic bigotry eclipsed these earlier
understandings. As the common-school movement
gained momentum, Protestant majorities began to argue that funding so-called “sectarian” schools was a
form of religious establishment, even though their
own schools conducted Protestant Bible reading and
religious exercises while receiving government funds.
And eventually, those majorities successfully leveraged those arguments to deny funding to Catholic
schools and those of other religious minorities.
Those developments were clear deviations from
the original meaning of the Establishment and Free
Exercise Clauses. And they took root over the repeated objection of Catholics and others, who continued to espouse the original understanding of their
right to free exercise. As such, nineteenth-century
history “born of bigotry” provides no legitimate basis
to support states’ violations of the free-exercise rights
of religious schools today. Espinoza, 591 U.S. at 482
(citation and internal quotation marks omitted).
III. On the best reading of the evidence, Founding-era history supports the Court’s holding in Carson
and the application of Carson’s principles to this case.
But even absent specific historical analogues, Carson
and the principles it announced would still be a faithful effort to apply the original meaning of the Free Exercise Clause to new circumstances. At the Founding,
government funded almost nothing in the private sector. But today, subsidies and other government bene-
5
fits create powerful tools to influence behavior. Denying states the ability to condition those benefits on religion or its exercise preserves the Constitution’s ban
on punishing or discouraging religious practice today.
Argument
I.
Disestablishment
prohibited
coerced
tithes, not funding for religious schools.
The historical record establishes a widespread
and unobjected-to practice of funding religious schools
around the time of the Founding. That practice was
principled and reflected a basic conviction: while coercing individuals to effectively pay a tithe was prohibited, funding other goods was not, even if recipients might use the money for something religious.
At the Founding, overwhelming historical evidence demonstrates that Americans who opposed religious establishments principally objected to religious assessments and taxes that were earmarked for
religious functions. The Establishment Clause prohibited schemes that funded religion qua religion—especially coercive exactions of money solely to finance
the religious function of ministers and churches.3 Exactions like those effectively coerced a type of religious
observance. Indeed, church taxes were explicitly described as problematic coerced tithes by multiple observers at the Founding. See Barclay et al., Original
Meaning and the Establishment Clause, supra, at
3 Mark Storslee, Church Taxes and the Original Understanding
of the Establishment Clause, 169 U. Pa. L. Rev. 111, 182–83
(2020); Stephanie H. Barclay, Brady Earley & Annika Boone,
Original Meaning and the Establishment Clause: A Corpus Linguistics Analysis, 61 Ariz. L. Rev. 505, 550–51 (2019); Douglas
Laycock, Churches, Playgrounds, Government Dollars—and
Schools?, 131 Harv. L. Rev. 133, 144–45 (2017).
6
548–49. These descriptions of coerced tithes were
equated to one type of “establishment of religion.” Id.
In 1764, for example, James Murray described
church taxes paid in the early colonies as a burdensome “tithe[]” that dissenters from the established
church “could not conscientiously pay, and for the refusal of which they have so greatly suffered.” Barclay
et al., Original Meaning and the Establishment
Clause, supra, at 544 (citing 4 James Murray, The
History of Religion: Particularly of the Principal Denominations of Christians 240 (London, C. Henderson
et al. 1764)).
Alexander Hamilton in 1775 similarly described
these taxes as a type of tithe to the “established
church.” Barclay et al., Original Meaning and the Establishment Clause, supra, at 549 (citing Alexander
Hamilton, Remarks on the Quebec Bill: Part Two, Rivington’s N.Y. Gazetteer, June 22, 1775, reprinted in
Founders Online, https://founders.archives.gov/documents/Hamilton/01-01-02-0059).
Hamilton also
pointed to an additional constitutional issue with
them: government assessment of tithes involved interference with church affairs by determining
whether the church was “owed” the tithe by parishioners or not. Id.
And concern about coerced religious tithes seems
to have been a central part of Madison’s objection to
the religious assessments proposed in Patrick Henry’s
bill that led to his famous Memorial and Remonstrance. Barclay et al., Original Meaning and the Establishment Clause, supra, at 512, 518 (citing James
Madison, Memorial and Remonstrance Against Religious Assessments ¶¶ 3–4 (June 20, 1785), in 8 The
Papers of James Madison 295, 298–304 (William T.
7
Hutchinson eds., 1973)); Storslee, Church Taxes, supra, at 125–28. Madison described the bill as imposing a “compulsive support” of religious teachers that
should “depend[] on the voluntary rewards of their
flocks.” Madison, Memorial and Remonstrance, supra, ¶¶ 4, 7. In other words, coercing the religious observance of a tithe was closely associated with both an
established religion and simultaneously a violation of
religious exercise.
In contrast to those specific and problematic types
of church taxes, where a program served a public good
and “d[id] not treat the religious aspect of a beneficiary’s conduct as an independent basis for funding,”
it was not seen as a coerced tithe, and thus was not an
establishment of religion. Storslee, Church Taxes, supra, at 119, 182–83.
In the years surrounding the ratification of the
First Amendment, virtually every state that ended
church taxes also provided tax money to religious
schools—including schools directly affiliated with
churches. Storslee, Church Taxes, supra, 150–63.
“Yet as far as we know, proponents of religious freedom did not object to that practice.” Id. at 118. “Rather, they seem to have actively supported it.” Id.; see
also id. at 147–50. And the same was true of the federal government after the Establishment Clause was
ratified. Id. at 163–69.
In Virginia, where resistance to church taxes was
the fiercest, the legislature passed Thomas Jefferson’s
“Bill for Establishing Religious Freedom”—which prohibited compelling anyone to “support any religious
worship, place, or ministry whatsoever”—and then
continued to fund religious schools seemingly without
8
comment or controversy.4 But “no one argued” that
this funding “violated Jefferson’s bill” because there
appears to have been no perceived “conflict between
them.” Storslee, Church Taxes, supra, at 133. Rather
than a “targeted effort to finance worship,” the program “provid[ed] educational opportunity to a rural
part of the state.” Id. Such a program “did not force
anyone to ‘support’ religion in a way the law actually
prohibited.” Id.
The same pattern unfolded across the country. In
Maryland, where opponents of a general assessment
had condemned church taxes as “robbery for burnt offerings,” the legislature continued to fund Washington
College—“a school authorized to instruct students in
subjects ‘useful … for the service of their country in
church and state,’ including divinity”—without objection. Storslee, Church Taxes, supra, at 151–53 (quoting Act of Apr. 1782, ch. VIII Md. Laws). Later, in
1819, the state provided funding to two Protestant
Sunday schools and a Roman Catholic school for orphans alike; “[a]ll three provided religious instruction
and worship, but received funds as a matter of
course.” Id. at 153–54. And in 1826, the legislature
passed a measure declaring that the school fund for
Frederick County be “dispersed to the pastor of St.
John Catholic church for the use of the church’s female free school.” Id. at 154.
4 See Storslee, Church Taxes, supra, at 129 (quoting An Act for
Establishing Religious Freedom (1786)); id. at 130 (citing Act of
Dec. 13, 1787, ch. XCVI) (1787 Virginia legislature ordering onesixth of the surveyor fees collected in the district of Kentucky to
be redirected to Transylvania Seminary, a Presbyterian school);
id. at 131 (citing Act of Dec. 31, 1787, ch. XCV) (1787 Virginia
legislature awarding portion of surveyor fees to Randolph Academy, a Presbyterian school).
9
Practice in the other southern states confirms
that same understanding. In North Carolina, church
taxes ended in 1776, but soon thereafter the legislature transferred an Episcopal church built with taxpayer funds to a Presbyterian academy. Storslee,
Church Taxes, supra, at 155. A “similar pattern” occurred in the remaining southern states, South Carolina and Georgia. Id. at 156–57.
The middle states followed the same practice.
New York, New Jersey, Delaware, and Pennsylvania
all banned church taxes but continued to use government funds for religious education. New York, for example, ended its church tax in the established Anglican counties in 1777. Storslee, Church Taxes, supra,
at 157. But starting in 1795, New York provided annual funding for education, and the legislature specifically named religious entities, including the Episcopal church, the Presbyterian church, and the Baptist
church, as beneficiaries. Id. at 158. New York later
extended school funds to a Catholic school and school
run by the Shearith Israel Congregation, a Jewish
synagogue. Id.; infra at 12–15.
Delaware and New Jersey explicitly banned
church taxes in their post-Revolutionary constitutions, yet they too funded religious schools. Storslee,
Church Taxes, supra, at 161. And in Pennsylvania,
the state enacted what was likely the country’s first
voucher program, allowing poor families to send their
children to “any school in their neighborhood”—including church schools—with the government reimbursing the cost. Id. at 162 (quoting Act of Mar. 1,
1802, ch. MMCCXLVII, § 1, 17 Statutes at Large of
Pennsylvania 81, 81 (1915)).
The consistency and breadth of this evidence suggest that “[f]unding for religious schools was not a
10
mistake, or explainable by a lack of resolve.” Storslee,
Church Taxes, supra, at 163. Funding for religious
schools “was done even in states like Virginia and
Pennsylvania where resistance to church taxes was
especially strong.” Id. “Judged by their practice, citizens in these states believed that” requiring taxpayers
to pay a tax solely used to fund “an institution’s religious function was prohibited”—“[b]ut the same was
not true of programs providing funds for things like
education, even if recipients might also use those
funds for religion.” Id.
The federal government continued the same practice. “Less than a year after the Establishment Clause
was ratified, the Washington administration authorized payment of $1,500 annually to support a Presbyterian school among the Iroquois and Stockbridge Indians.” Storslee, Church Taxes, supra, at 168. And
under President Jefferson, the federal government
provided annual payments for a Catholic priest to instruct Native American children “in the rudiments of
literature” while carrying out “the duties of his office.”
Id. (quoting A Treaty Between the United States of
America and the Kaskaskia Tribe of Indians,
Kaskaskia Tribe-U.S., art. III, Aug. 13, 1803, 7 Stat.
78, 78–79 (1803)). Congress continued funding religious schools among the tribes that were supervised
by Methodists, Baptists, Presbyterians, Episcopalians, Quakers, and Catholics alike, “more or less uninterrupted until as late as 1870.” Id. at 168–69; see also
Nathan S. Chapman, Forgotten Federal-Missionary
Partnerships: New Light on the Establishment Clause,
96 Notre Dame L. Rev. 677 (2020).
Nor was this federal practice limited to Indian territories. “In 1804, Congress ordained a municipal government for Washington, D.C. and provided it with
11
authority to” establish schools. Storslee, Church
Taxes, supra, at 164. Under that delegated authority,
and across the next several decades, the city provided
support to a Lancasterian school, Presbyterian
schools, and a Catholic school without a record of anyone raising an Establishment Clause objection. Id.
at 164–66.
In short, “providing funds to support a public good
like education was well within the government’s
power” at the Founding. Storslee, Free Exercise and
Funding, supra, at 108.
II. Historical evidence confirms that the Free
Exercise Clause forbids the government
from denying otherwise available support
based on religion or its exercise.
The historical record also suggests that denying
funds to religious schools based on religion or religious
exercise was understood to violate the Free Exercise
Clause. By all indications, efforts to exclude religious
organizations from funding or other benefits were rare
in the years immediately surrounding the Founding.
But the early historical examples that exist point toward a “symmetr[y]” between early understandings of
free exercise and disestablishment. Storslee, Free Exercise and Funding, supra, at 104. Just as the government could not provide funds solely to support religious observances, neither could the government refuse otherwise available support for goods like education based on religion or its exercise.
Developments later in the nineteenth century
broke that unity apart. Protestant efforts to establish
common schools and anti-Catholic animus prompted
a movement to defund so-called “sectarian” schools
while retaining funding for schools run by the
12
Protestant majority. That movement was inconsistent with the earliest understandings of disestablishment and free exercise. And as such, it provides
no proper guide for interpreting the First Amendment
today.
A. Early controversies demonstrate that
the Free Exercise Clause prohibits refusing funds based on religion or its exercise.
Founding-era controversies over selective funding
demonstrate the early American understanding of
symmetry between disestablishment and free exercise. On this understanding, government lacked the
power to fund religious exercise for its own sake. But
it also lacked the power to deny funding supporting
education or other public goods where the reason for
denying funding was a recipient’s religion or the recipient’s religious exercise. See Storslee, Free Exercise
and Funding, supra, at 104.
“The earliest and most notable episode involving
free exercise and funding occurred in New York.”
Storslee, Free Exercise and Funding, supra, at 110.
As described above, the New York legislature began
providing funds to support schools “without regard to
their religious persuasions” as early as 1795. Id. In
the early years, those funds were disbursed “equally
to schools run by Baptists, Presbyterians, Episcopalians, and others.” Id. In 1806, the legislature started
to “extend[] that benefit to” New York City’s “religious
minorities”—specifically, to a Catholic school and a
school “operated by the Shearith Israel Congregation,
the country’s oldest Jewish synagogue.” Id.
“[N]ot everyone was satisfied with that arrangement.” Storslee, Free Exercise and Funding, supra, at
13
110. The New York Free School Society “had operated
schools alongside the city’s denominational schools”
since 1805. Id. at 111. The Free Schools were nonsectarian, but not secular: they “aimed to ‘inculcate the
sublime truths of religion and morality contained in
the Holy Scriptures,’ but ‘without observing the peculiar forms of any religious Society.’” Id. (quoting the
Society’s 1805 address to the public). In 1812, the
Free School Society “began a campaign to discontinue
state financial support for denominational schools,”
seeking “exclusive control of education funds in New
York City.” Id.
Shearith Israel contested this campaign by appealing to the state’s free-exercise clause. Among
other provisions, New York’s 1777 constitution guaranteed “the free exercise and enjoyment of religious
profession and worship, without discrimination or
preference.” N.Y. Const. of 1777, art. XXXVIII.
Shearith Israel argued that, under that provision, the
Free School Society “was ‘justly entitled to a share of
the interest of the School Fund, in common with other
Charity Schools in this city,’” but that the Society had
“‘no claim … to the exclusive patronage of the state
bounty.’” Storslee, Free Exercise and Funding, supra,
at 111–12 (quoting Memorial of Trustees of the Congregation of Shearith Israel to Legislature of the State
of N.Y. at 92–93 (Jan. 10, 1813)). According to
Shearith Israel, such a proposal was “at variance with
the liberal spirit of our constitution, which recognizes
no distinction in religious worship.” Memorial of
Trustees of the Congregation of Shearith Israel, supra, at 95.5
5 A “memorial” in this context is a formal petition or letter to a
legislature.
14
Shearith Israel’s appeal to free exercise shared
strong parallels with arguments made by New York
City’s Catholics just a few years earlier. Storslee, Free
Exercise and Funding, supra, at 113. In 1806, Catholic leaders associated with St. Peter’s Church (New
York City’s only Catholic parish at the time) protested
the state’s test oath for public officials, “which required renouncing allegiance to every foreign monarch or potentate ‘in all matters ecclesiastical as well
as civil’ as a condition for holding office.” Id. at 112–
13. The oath’s language “had the clear effect of forcing
Catholics either to perjure themselves or renounce
their allegiance to the pope in order to serve in government.” Id. at 113. A letter from Catholic leaders
to the legislature argued that “the test-oath violated
the ‘liberal principle’ of the state’s free-exercise
clause, by operating as an ‘oppressive disqualification[] on the score of religion.’” Id. (quoting Leo Raymond Ryan, Old St. Peter’s: The Mother Church of
Catholic New York (1795–1935) 84–85 (1935)).
“Shearith Israel’s memorial offered a parallel, nearly
verbatim argument, now in the context of school
funds.” Id. at 113.
Shearith Israel’s position prevailed in the legislature. Having considered Shearith Israel’s memorial
alongside others, the New York legislature rejected
the Free School Society’s proposal and instead mandated funds for schools on a per capita basis. Storslee,
Free Exercise and Funding, supra, at 113. “And in the
final version of the law, the legislature went even further—mandating funds not only for existing denominational schools in the city, but also for other denominational schools that might be established in the future.” Id. (citing Act of Mar. 12, 1813, ch. LII, § IV,
1813 N.Y. Laws 53, 54–55).
15
To our knowledge, the controversy over school
funds in New York represents the earliest effort anywhere in the country to deny government funds to
church- or synagogue-run schools. And at minimum,
this episode “suggests that, far from viewing selective
funding as ‘consistent with constitutional free-exercise principles,’ at least some (and likely many) supporters of denominational schools in this period believed something closer to the opposite.” Storslee,
Free Exercise and Funding, supra, at 114. Rather
than validating selective funding, this episode indicates that on the earliest understanding, free exercise
stood against denials of funding or other benefits that
were premised on “a distinction in religious worship.”
Memorial of Trustees of the Congregation of Shearith
Israel, supra, at 95.
And indeed, at least one additional “early episode”
reflects similar principles. Storslee, Free Exercise and
Funding, supra, at 114. When New Orleans became
part of the United States following the Louisiana Purchase in 1803, Catholic nuns in the Ursuline Order
who operated a free school for destitute children wrote
to John Carroll, America’s first Catholic bishop, about
the “status of the school and its property.” Id. at 114–
15. The Ursuline nuns were particularly concerned
that their land may have passed to the federal government or be subject to federal confiscation. Carroll
“promptly passed along their concerns to James Madison, then Secretary of State,” who assured the nuns
that President Jefferson “fully supported ‘the public
benefit’” of their school, “a sentiment that applied ‘to
those of all religious persuasions.’” Id. at 115 (quoting
Letter from James Madison to John Carroll (July 20,
1804), reprinted in 2 Peter Guilday, The Life and
Times of John Carroll 1735–1815, at 482 (1922)).
16
The nuns also appealed to President Jefferson directly. Storslee, Free Exercise and Funding, supra, at
115. In response, Jefferson likewise reassured the
nuns and invoked constitutional principles of free exercise. He first assured them “that ‘the principles of
the constitution’ provided a sure guarantee that the
nuns’ property would be ‘preserved to you inviolate.’”
Id. (quoting Letter from Thomas Jefferson to the Ursuline Nuns of New Orleans (July 13, 1804), reprinted
in 44 The Papers of Thomas Jefferson 78, 78 (James
P. McClure, Martha J. King, Tom Downey, W. Bland
Whitley, Andrew J.B. Fagal, & Merry Ellen Scofield
eds., 2019)). He added that those same constitutional
principles would ensure that their school would be
“permitted to govern itself according to [its] own voluntary rules, without interference from the civil authority.” Letter from Thomas Jefferson to the Ursuline Nuns, supra. And he “observed that ‘whatever
diversity of shade may appear in the religious opinions of our fellow citizens,’ the nun’s charitable endeavors ‘cannot fail to ensure … the patronage of the
government it is under.’” Storslee, Free Exercise and
Funding, supra, at 116 (quoting Letter from Thomas
Jefferson to the Ursuline Nuns, supra).
On the most straightforward reading, Jefferson
and Madison’s response to the Ursuline nuns points
to the same basic principle espoused by Shearith Israel. Like denominational schools in New York, the
nuns expressed concern that government would deny
them a form of public patronage based on their religious practice. And in response, Jefferson indicated
that the “principles of the constitution” prohibited
that result, whatever the “diversity of shade may appear in the religious opinions of our fellow citizens.”
17
Storslee, Free Exercise and Funding, supra, at 116
(quoting Letter from Thomas Jefferson to the Ursuline Nuns, supra). Here, as in Shearith Israel’s case,
Jefferson appears to have understood free-exercise
principles to forbid government from denying the
nuns a form of aid “where doing so was based solely
on their religious exercise.” Id. In other words, Jefferson believed that these constitutional principles
not just permitted but required a “sure guarantee”
that even-handed government support of this religious ministry would continue “without interference.”6
B. Later deviations from these principles
reflected Protestant majoritarianism
and anti-Catholic bigotry, not the original understanding of the Free Exercise Clause.
In the nineteenth century, Protestant hegemony
and the push for common schools began to break earlier understandings of the symmetry between disestablishment and free exercise. Rather than complementing free exercise, misguided disestablishment
rhetoric became “a sword to vanquish it.” Storslee,
Free Exercise and Funding, supra, at 122.
Here again, New York provides one of the earliest
examples. In 1840, as “Catholic migration transformed” New York City, a new dispute over selective
funding arose. Storslee, Free Exercise and Funding,
6 See Stephanie Barclay, Spheres of Liberty and Free Exercise:
Lessons for Fulton from Jefferson’s Correspondence with Ursuline Nuns, The Volokh Conspiracy (Nov. 2, 2020), https://reason.
com/volokh/2020/11/02/spheres-of-liberty-and-free-exercise-lessons-for-fulton-from-jeffersons-correspondence-with-ursulinenuns.
18
supra, at 118. Catholic groups again objected by invoking free exercise arguments similar to those previously made by Shearith Israel. For example, the
Catholic groups appealed to “the principles of the Constitution, which secures equal civil and religious
rights to all,” id. at 118–19 (quoting a resolution from
a meeting of Catholic leaders on July 20, 1840), and
sought “a just proportion of the public funds” for denominational schools, id. at 119.
Opponents of Catholic schools resisted this argument, relying in part on a new claim to constitutional
authority:
“[P]roviding funds to denominational
schools was incompatible with the ‘entire separation
of Church and State’ that underlay ‘our political compact.’” Storslee, Free Exercise and Funding, supra, at
120 (quoting Robert C. Cornell, Reply of the Trustees
of the Public School Society to the Address of the Roman Catholics (Aug. 27, 1840)). “In New York, the
Free School Society first advanced this argument in
1824.” Id. By 1840, the argument was “commonplace.” Id. Yet even as these disputes proliferated in
other states, “the basic understanding of free exercise
articulated by Shearith Israel and endorsed by Catholic petitioners in New York persisted in debates over
schools and funding well into the nineteenth century.”
Id. at 123 (citing examples in Michigan, New Jersey,
D.C., and Philadelphia).
Following the Civil War, Catholic parochial
schools became a flashpoint amid rising CatholicProtestant tensions. See Charles L. Glenn, The American Model of State and School 154–55 (2012). Many
Protestants viewed Catholic parochial schools and the
Catholic Church in general as “a menacing limitation
upon national unity and progress.” Id. at 155. And
accordingly, opponents “hammered away at the idea
19
that schools operated by the religious communities
taught a perverted doctrine inimical to modern ideas.”
Id. (quotation marks omitted). “Protestant theologian
Horace Bushnell warned against the influence of
Catholic schools, as a menace to society,” in which “the
children of immigrants ‘will be instructed mainly into
the foreign prejudices and superstitions of their fathers.’” Id. at 156.
That animosity was a consistent presence in public life until well into the 20th century. It animated
the failed “Blaine Amendment” to the federal Constitution, which would have outlawed any use of public
money to fund sectarian education. Glenn, American
Model, supra, at 157; see also Espinoza, 591 U.S. at
498–99 (Alito, J., concurring) (noting the “wellknown” history of the Blaine Amendment, which “was
prompted by virulent prejudice against immigrants,
particularly Catholic immigrants”). And it similarly
animated the many copycat state laws and constitutional amendments.
The idea that funding “sectarian” schools
amounted to a form of religious establishment had no
basis in Founding-era practice or understanding. See
supra at 12–17. But the idea allowed proponents of
emerging Protestant common schools “to do something they had [previously] failed to do—respond to
their opponents’ free-exercise arguments with newly
minted claims to constitutional authority.” Storslee,
Free Exercise and Funding, supra, at 121. That dynamic was especially notable considering the larger
context of these early disputes. Opponents of denominational schools presented their disestablishment arguments as matters of constitutional command. But
in many cases, they did not object to funding religious
education as such; instead, they objected to funding
20
what they labeled as “sectarian” education. See Laycock, Churches, Playgrounds, Government Dollars—
and Schools?, supra, at 145. In fact, in many places
around the country, “a Protestant majority” was “mobiliz[ed]” to “[d]efend[] the use of the Bible in public
schools” at the very same time that many Protestant
groups rallied against public funding of Catholic
schools. Glenn, American Model, supra, at 161.
Put differently, “Protestant political leaders and
voters” occupied a position that does not neatly fit into
contemporary debates on funding for religious
schools: they “insist[ed] that public schools should
continue to have a Protestant character,” even as they
simultaneously were “equally adamant that ‘sectarian’ schooling was unAmerican.” Glenn, American
Model, supra, at 162. “[I]t was an open secret that [in
the 1870s] ‘sectarian’ was code for ‘Catholic.’” Mitchell
v. Helms, 530 U.S. 793, 828 (2000).
In short, “[t]he claim that funding religious
schools is or should be unconstitutional did not
emerge until long after the Founding, and in response
to intense Protestant-Catholic conflict.” Laycock,
Churches, Playgrounds, Government Dollars—and
Schools?, supra, at 145. Accordingly, that history
bears little weight in understanding the meaning of
the Religion Clauses today.
III. The Court should approach the First
Amendment’s application to school-funding disputes consistent with the original
meaning of the Free Exercise Clause.
Some scholars have criticized this Court’s decision
in Carson and similar cases by arguing that “nineteenth-century history is devoid of evidence linking
free exercise and funding.” Storslee, Free Exercise
21
and Funding, supra, at 131. But as demonstrated
above, that argument overlooks some of the earliest
historical evidence concerning free exercise and funding, not to mention evidence of other groups “arguing
that selective school funding violated their right to
free exercise” well into the nineteenth century. Id. at
104. All of this should inform the Court’s decisions in
this area. But even without specific historical analogues, Carson faithfully applies the original meaning
of the Free Exercise Clause to modern disputes concerning public funding of education.
A. Carson faithfully applies the original
understanding of the Free Exercise
Clause to today’s government programs.
As explained above, in the years immediately after the “adoption of the Religion Clauses” and “well
into the nineteenth century,” Catholics and other religious minorities successfully deployed free-exercise
arguments in “contexts involving government subsidies of various kinds.” Storslee, Free Exercise and
Funding, supra, at 131. These arguments appear to
have prevailed until “proponents of ‘nonsectarian’
schools subordinated that understanding to a novel
theory of church-state separation” later in the nineteenth century. Id.
In Lemon v. Kurtzman, 403 U.S. 602 (1971), and
other cases, this Court for many years incorrectly
“projected this later nineteenth-century view back on
to the Founding era.” Storslee, Free Exercise and
Funding, supra, at 132 (citing Lemon). “But the historical evidence does not support that conclusion.” Id.
Denying funds to religious schools based on establishment concerns was a “nineteenth-century innovation.”
22
Id. And denying funding to a religious school “based
solely on a recipient’s religious exercise” would have
been “‘at variance with the liberal spirit of our constitution, which recognizes no distinction in religious
worship.’” Id. at 132, 104 (quoting Memorial of Trustees of the Congregation of Shearith Israel, supra, at
95).
To be sure, at the time of the Founding selectivefunding disputes were “relatively rare.” Storslee, Free
Exercise and Funding, supra, at 116. “But that fact
makes the examples of Shearith Israel and the Ursuline nuns even more striking.” Id. These historical
episodes demonstrate that “[i]n the period surrounding the Founding, when government funded almost
nothing in the private sector, funding for religious
schools was ubiquitous,” and “when proposals to exclude some schools on account of their religious activities arose, the constitutional objection based on free
exercise immediately appeared.” Id.
Consistent with that historical understanding,
Carson instructs that “including religious entities in
funding programs is not unconstitutional ‘support’ for
religion,” but “support for a public good, offered to a
variety of recipients based on neutral, non-religious
criteria.” Storslee, Free Exercise and Funding, supra,
at 103; see also Carson, 596 U.S. at 781. Carson further teaches that “denying funding on account of religion is not … neutral” but “a penalty on religious practice” in violation of the Free Exercise Clause. Storslee,
Free Exercise and Funding, supra, at 103; see also
Carson, 596 U.S. at 780. Carson therefore “might well
be seen as giving voice to early understandings of free
exercise articulated by Shearith Israel and others,
now in a different context.” Storslee, Free Exercise
and Funding, supra, at 132.
23
To be sure, relating this history to modern controversies requires an act of judgment, or what some
originalist scholars would refer to as an act of constitutional construction. See generally Stephanie Hall
Barclay, Constructing Constitutional Rights, 138
Harv. L. Rev. F. 140 (2025). Unlike their historical
predecessors, modern disputes about government
funds for religious schools generally involve state laws
that fund only secular schools, or (as in this case) deny
otherwise available funds based on a recipient’s free
exercise. But the Founding-era commitment to religious equality and free exercise applies “just as readily to modern programs that deny funding only to religious private schools while extending it to secular
ones.” Storslee, Free Exercise and Funding, supra, at
132.
Likewise, the nineteenth-century history deviating from those Founding-era commitments is not a reliable guide for the reasons explained above. It was a
departure from the original understanding of free exercise, born of nineteenth-century Protestant-Catholic conflict and anti-Catholic bigotry. Just as the
Court declined to use history of Jim Crow disarmament laws to interpret appropriate limits on the right
to bear arms, Wolford v. Lopez, No. 24-1046, 609 U.S.
___ (U.S. June 25, 2026) (slip op. at 23–24), and the
Court shouldn’t “use the history of segregation to interpret the Equal Protection Clause now,” Transcript
of Oral Argument, Oklahoma Statewide Charter Sch.
Bd. v. Drummond, Nos. 24-394 & 24-396 (Apr. 30,
2025) at 48:9–10 (Sotomayor, J.), the Court shouldn’t
rely on failures to protect religious minorities in the
nineteenth century as reliable evidence of the meaning of the Free Exercise Clause today. Espinoza, 591
24
U.S. at 482 (“The no-aid provisions of the 19th century
hardly evince a tradition that should inform our understanding of the Free Exercise Clause.”).
B. Even without specific historical analogues, Carson faithfully applies the
original meaning and purpose of the
Free Exercise Clause.
Even without the Founding-era examples described above, Carson and similar cases would still reflect the correct application of the First Amendment
to today’s government programs.
Examples of our Nation’s shortcomings in the protection of free exercise are plenty. For example, “almost every state had blasphemy laws at the Founding
and well into the nineteenth century.”7 Laws like
these were widely criticized by Madison, Jefferson,
Adams, and others. See Barclay, Making Laws, supra,
at 5–6. In this vein, Tucker’s 1803 annotated edition
of Blackstone described blasphemy laws as running
afoul of free exercise principles “contained in the bill
of rights.” Id. at 7 (citing 5 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the
Constitution and Laws of the Federal Government of
7 Michael McConnell, Douglas Laycock, Stephanie Barclay, &
Mark Storslee, The Court Shouldn’t Bruen-ize the Free Exercise
Clause, The Volokh Conspiracy (Mar. 8, 2025), https://reason.
com/volokh/2025/03/08/the-court-shouldnt-bruen-ize-the-freeexercise-clause/; see also Stephanie Barclay, Making Laws for the
Human Mind: The Founding, Free Exercise, and Parental Rights
after Mahmoud and Mirabelli (forthcoming in Cornell L. Rev.
2026), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7016558.
25
the United States and the Commonwealth of Virginia
59 n.9 (1803)).
Similarly, “teachers caned and expelled Catholic
children in public schools for refusing to read the King
James Bible—and courts upheld those actions.” The
Court Shouldn’t Bruen-ize the Free Exercise Clause,
supra. Our nation’s “history and tradition includes
the long-running persecution of the Mormons,” “attempts to impose Protestant forms of governance on
Catholic Churches, to force all children to attend public schools, and to stamp out the Native American sun
dance.” Id. That we can point to numerous historical
analogues of government regulation of religious exercise “does not mean those regulations were living up
to the constitutional promise of free exercise.” Id.
The Framers themselves recognized that “defenders of [historic] abuses” of free exercise would not “instantly acquiesce” upon the Bill of Rights’ ratification.
The Court Should Not Bruen-ize the Free Exercise
Clause, supra; see also Barclay, Constructing Constitutional Rights, supra, at 150 n.68 (citing James Madison, Speech in Congress Proposing Constitutional
Amendments (June 8, 1789) in James Madison: Writings 437, 448 (Jack N. Rakove ed., 1999)). Madison,
on introducing the Bill of Rights, noted that many
states already had bills of rights in their own constitutions, and that there were “few particular states in
which some of the most valuable articles have not, at
one time or other, been violated.” Barclay, Constructing Constitutional Rights, supra, at 171 (quoting
Cong. Reg. (June 8, 1789), reprinted in 11 Documentary History of the First Federal Congress of the United
States of America, March 4, 1789–March 3, 1791, at
26
825 (Charlene Bangs Bickford et al. eds., 1992) (statement of James Madison)). Madison “understood that
the new experiment of popular sovereignty that the
Founding generation was engaging in often resulted
in action that fell short of the constitutional ideal.” Id.
An interpretive method that looks to “Founding-era
regulations as conclusive evidence of what limitations
on rights are constitutionally permissible could easily
lead an interpreter astray and result in far less protection than was anticipated for important rights like
speech and religious exercise.” Id.
Understanding and applying the historic meaning
of free exercise therefore requires more than an unreasoned appeal to past practice. Instead, understanding the original meaning of the Free Exercise
Clause requires “a serious attempt to discern the positive meaning of” the First Amendment, even while
“recognizing that the full implications of a constitutional right—even from the moment of its ratification—may not have been immediately accepted or
fully understood.” The Court Shouldn’t Bruen-ize the
Free Exercise Clause, supra. “Sometimes practices flying under the banner of ‘tradition’ are nothing more
than flagrant violations, made possible by bigotry or
unreflective inertia.” Id. (citing Mark Storslee, History and the School Prayer Cases, 110 Va. L. Rev.
1619, 1684–91 (2024) (discussing the practice of compelled religious observance in nineteenth century public schools)).
Acknowledging the appropriate role of historical
analogues has an important consequence. Rather
than looking to historical practices alone, “something
like strict-scrutiny analysis” would be a more faithful
“doctrinal tool for implementing the Free Exercise
27
Clause’s historic meaning.” The Court Shouldn’t
Bruen-ize the Free Exercise Clause, supra; see also
Stephanie H. Barclay, Replacing Smith, Yale L.J. F.
436, 457–58 (2023). Early state constitutions broadly
protected free exercise unless religious exercise “endanger[ed] ‘the public peace’ or ‘safety.’” Fulton v. City
of Philadelphia, 593 U.S. 522, 575 (2021) (Alito, J.,
concurring in judgment).8 Madison, too, “focused on
the types of reasons for which government could regulate religious exercise,” reasons that he thought
“should be exceedingly limited,” when debating the
limits of religious liberty. The Court Shouldn’t Bruenize the Free Exercise Clause, supra. “And Foundingera courts likewise protected religious liberty in ways
that resembled modern strict scrutiny analysis in
other important respects, including asking evidentiary questions that looked like some version of
means-ends scrutiny.” Id.; Barclay, Replacing Smith,
supra, at 461–65.
Indeed, this Court has recently taken a similar approach as it has refined the Bruen test through
Rahimi and especially Hemani.9 There, the Court
first assessed whether the government had pointed to
a permissible historical reason for limiting a constitutional right. But the analysis did not end there. This
Court made clear that government cannot disarm a
8 See also Michael W. McConnell, The Origins & Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409,
1455–66 (1990).
9 See Stephanie Barclay, Hemani: Proving the Reason, Not Just
Naming It, SCOTUSBlog (June 22, 2026), https://www.scotusblog.com/2026/06/hemani-proving-the-reason-not-just-naming-it/.
28
person simply by naming a permissible historical reason. A government could defeat a constitutional right
in any case if the Court was required to defer to its
mere “say-so” about a permissible historical reason
like dangerousness without “any further showing.”
See United States v. Hemani, No. 24-1234, 608 U.S.
___ (U.S. June 18, 2026) (slip op. at 7, 18–19); Kanter
v. Barr, 919 F. 3d 437, 465 (7th Cir. 2019) (Barrett, J.,
dissenting). This Court suggested instead that government must prove that the permissible reason it
names is the reason it actually acted, and to tie that
reason to the person it seeks to disarm. In the religious exercise context, that is precisely what strict
scrutiny does. See Stephanie Hall Barclay, Constitutional Rights as Protected Reasons, 92 U. Chi. L. Rev.
1179, 1187–88 (2025); Barclay, Replacing Smith, supra, at 455–564.
Moreover, the scope of federal and state funding
for private actors has expanded dramatically since the
Founding. Today, restrictions on government benefits
are often just as powerful as outright penalties in
their coercive power. Thus, as Justice Scalia explained, “[w]hen the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured;
and when the State withholds that benefit from some
individuals solely on the basis of religion, it violates
the Free Exercise Clause no less than if it had imposed
a special tax.” Locke v. Davey, 540 U.S. 712, 726–27
(2004) (Scalia, J., dissenting).
Accordingly, even without historical analogues
like those described above, Carson’s application of
strict scrutiny to the government’s exclusion of reli-
29
gious schools from otherwise available funding is consistent with Founding-era history and thus “a faithful
means of applying the Constitution’s historic meaning
today.” Storslee, Free Exercise and Funding, supra,
at 137.
Conclusion
In considering the questions presented in this
case, the Court should apply the standard enunciated
in Carson and similar cases, consistent with the original understanding of the Free Exercise Clause.
Respectfully submitted,
MATT GREGORY
Counsel of Record
ALY COX
JESSE SCHUPACK
LAURA STANLEY
Gibson, Dunn & Crutcher LLP
1700 M Street, N.W.
Washington, D.C. 20036
(202) 955-8500
mgregory@gibsondunn.com
Counsel for Amici Curiae
July 2, 2026
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