Free Exercise and Funding

Mark Storslee*

In a series of cases culminating in Carson v. Makin, the Supreme Court has held that the Free Exercise Clause prohibits states from excluding religious schools from funding programs solely because of their religious exercise. Yet so far, the Court has failed to explain how that approach follows from early understandings of free exercise. And what’s more, critics have recently suggested that no such historical evidence exists.

This Article suggests that the historical record is both more interesting and more complicated than either side has so far acknowledged. Far from being “barren” of free exercise arguments, evidence from the Founding period onward contains numerous examples of religious groups arguing that exclusionary school funding violated their right to free exercise—an argument that sometimes prevailed, especially early on. Considering that history provides a new vantage point for evaluating Carson and related cases. But even more, appreciating the complexities this evidence presents may also provide some important insights about the usefulness and limits of appeals to history in this area, whatever one’s constitutional methodology.

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© 2026 Mark Storslee. 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.

*Associate Professor and C. Boyden Gray Distinguished Scholar, University of North Carolina School of Law. Thanks to Stephanie Barclay, Thomas Berg, Ethan Hutt, Christopher Lund, Samuel Bray, Douglas Laycock, William Marshall, Michael McConnell, Aaron Tang, and Lael Weinberger for thoughtful comments on earlier drafts.