Mapping Carson: New Frontiers of Religious Exclusion in Government Programs

Michael A. Helfand*

At least on its surface, Carson v. Makin appeared to resolve the long-standing debate over whether the Constitution permits States to exclude religion from public programs designed to support private participation. But beneath Carson’s elegant simplicity lies a set of unresolved questions about how the Free Exercise Clause’s prohibition against religious discrimination in government programs applies across a host of public benefits and regulatory settings. What looks like a bright line in theory has, in practice, produced new uncertainty about where the Free Exercise Clause ends and permissible regulation begins.

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© 2026 Michael A. Helfand. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Brenden Mann Foundation Chair in Law and Religion, Professor of Law, and Co-Director of the Nootbaar Institute on Law, Religion and Ethics at Pepperdine Caruso School of Law; Visiting Professor and Research Fellow at the Brodie Center for Jewish and Israeli Law, Yale Law School; Senior Fellow, Shalom Hartman Institute.