Back in 2023, we posted about the court cases that had recently been decided and the overwhelming support in law and under judicial review across the nation for school choice programs, parental rights, and religious liberty nationwide. Since then, there have been even more case laws stacking up in favor of parental rights and school choice. Here is a recap of previous rulings along with some newer ones.
Well-designed and religiously neutral programs that empower parents are almost always upheld as constitutional. Often we see that those who are anti-religion in the public square get the constitutional question confused as they mistake religiously neutral for a prohibition on any religion at all. This simply isn’t how our Constitution was written nor how our nation has operated since its founding. In state after state we are seeing anti-religious roadblocks being torn down both in courts and in legislatures. The era of government-sanctioned religious bigotry, at least in the area of educational choice and parental rights, appears to be over.
Recent Court Cases and Legal Developments:
Pulsifer v. Westshore Christian Academy (July 2025) – This decision, released just days before the publishing of this article, builds on Our Lady of Guadalupe School v Morrissey-Berru (see below) and affirms the ministerial exception for employees who fulfill ministerial roles in religious institutions, including private, religious schools. For more information on the “ministerial exception,” IACS’ partner Alliance Defending Freedom (ADF) has a good resource on their website. Key quote from the opinion: “His leadership in daily devotions, prayers, and youth ministries … was ‘vital’ to the school’s religious mission.”
Oklahoma Statewide Charter School Board v. Drummond (May 2025) – This case is one that reiterates what many school choice advocates have been saying for years: charter schools are a great option, but they are public schools and public schools shouldn’t be religious schools. Although most rational Americans agree that public schools should respect students’ religious beliefs and not work against their students’ religious beliefs, a religious public school isn’t in the best interest of the public, confuses and blurs the lines between public and private schools, and isn’t necessary if universal school choice is offered. Charters should be as deregulated as possible and afforded the ability to innovate as publicly chartered non-district, non-“traditional” public schools. This case is consistent with the other 20th and 21st century Supreme Court cases on religious liberty, parental rights, and school choice.
Key quote from the opinion: “Enforcing the St. Isidore Contract would create a slippery slope and what the framers’ warned against — the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”
Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission (June 2025) – Although not directly related to school choice, this case further establishes the religious liberty and autonomy protections for para-church or non-church-based religious organizations, including religious charities, schools, and other organizations. The potential takeaway for religious schools is that non-church-based orgs are and can be bona fide religious organizations and that, regardless of the demographic served or whether the org does similar tasks as secular institutions, the state does not get to step in and decide it isn’t “religious enough.”
Key quote from the opinion: “Petitioners’ eligibility for the exemption ultimately turns on inherently religious choices (namely, whether to proselytize or serve only co‑religionists), not ‘secular criteria’ that happen to have a disparate impact upon different religious organizations.”
Prior to 2025, numerous court cases should have put the tired, religiously bigoted arguments against school choice to bed once and for all:
Meyer v. State of Nebraska (1923) – “Nebraska passed a law prohibiting teaching grade school children any language other than English. Meyer, who taught German in a Lutheran school, was convicted under this law. The Court declared the Nebraska law unconstitutional, reasoning it violated the liberty protected by the Due Process Clause of the Fourteenth Amendment. Liberty, the Court explained, means more than freedom from bodily restraint. It also includes the right of a teacher to teach German to a student, and the right of parents to control the upbringing of their child as they see fit. “While the state has a legitimate interest in encouraging the growth of a population that can engage in discussions of civic matters, the means it chose to pursue this objective was excessive.”
“Meyer v. State of Nebraska.” –Oyez
Key quote from the opinion: “[Liberty] denotes not merely freedom from bodily restraint but also the right of the individual to establish a home and bring up children…”
Pierce v. Society of Sisters (1925) – “The Compulsory Education Act of 1922 required parents or guardians to send children between the ages of eight and sixteen to public school in the district where the children resided. The Society of Sisters was an Oregon corporation which facilitated care for orphans, educated youths, and established and maintained academies or schools. This case was decided together with Pierce v. Hill Military Academy…Did the Act violate the liberty of parents to direct the education of their children?…Yes. The unanimous Court held that “the fundamental liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”
“Pierce v. Society of Sisters.” –Oyez.
Key quote from the opinion: “The child is not the mere creature of the State.”
Wisconsin v. Yoder (1972) – The Supreme Court held that Amish parents could not be compelled to send their children to school beyond the 8th grade, affirming religious freedom and parental rights. The Court made it clear that parental control over education is protected when tied to sincere religious beliefs.
Zobrest v. Catlina Foothills School District (1993) – Ninth Circuit Court of Appeals ruled that a sign language interpreter could be provided by the public school for a student attending a Catholic school, reaffirming neutrality toward religious educational services.
Zelman vs. Simmons-Harris (June 2002) – The Institute for Justice (IJ) summarizes this case: “In 2002, the U.S. Supreme Court declared that educational choice programs are constitutional in an IJ case called Zelman v. Simmons-Harris. This case built on a number of prior decisions that held that the Establishment Clause permits neutral government programs of true private choice where individuals direct public aid to religious institutions. In Zelman, the Court held that a publicly funded scholarship program that allowed parents to choose to send their children to private and religious schools was no different. The Court explained: “[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.”
Trinity Lutheran Church of Columbia Inc. v. Comer (June 2017) – The state of Missouri had a program that provided services to schools (public and private) but excluded religious schools, citing its “Blaine Amendment.” From SCOTUSblog: “The Missouri Department of Natural Resources’ express policy of denying grants to any applicant owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church of Columbia, Inc., under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status.”
Espinoza vs. Montana Department of Revenue (June 2020) – Relying on its “Blaine Amendment,” Montana’s Supreme Court struck down the tax credit scholarship program on the grounds that it funded students attending religious schools. This case was centered on the idea that states could not include organizations in state programs if their “status” was religious. In other words, religious organizations could not receive state funds directly or indirectly. After almost 100 years of anti-Catholic and anti-religious bigotry, this case finally knocked down state Blaine Amendments, at least as it relates to educational choice and similar state programs that utilize private providers of any type.
Our Lady of Guadalupe School v. Morrissey-Berru (July 2020)– This case addressed an additional issue beyond the “Blaine Amendment” discrimination issues. Can government regulate religious organization’s employment or religious standards to prevent “discrimination?” The answer is: No. It can’t. The court defined the “ministerial exception” to include religious schools. This case goes a long way in warning against over-regulation of religious schools in an effort to control them or prevent them from participating in programs.
Carson vs. Makin (June 2022) – After Espinoza, Maine tried to bypass the requirement to include religious schools if any other type of private school was included (“religious status”) by saying that they were excluding religious schools who “use” the money for religious purposes. You can be religious, they argued, as long as you don’t do anything religious. The Supreme Court agreed with the plaintiff that this is an absurd standard. Espinoza canned religious discrimination in state programs based on “religious status.” This case put the final nail in the coffin by prohibiting religious discrimination via “religious use” restrictions. From SCOTUSblog: “Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments to parents who live in school districts that do not operate a secondary school of their own violates the free exercise clause of the First Amendment.”
From general benefit programs, to scholarship and voucher programs, to the employment and religious policies of religious schools, courts have been clear that it is not a violation of Constitutional principals to include religious schools in programming of any nature and that excluding them is actually a violation of the rights of parents and religious schools.
Where Did These “Blaine Amendments” Come From?
Many arguments against school choice either falsely claim that “public funds” should only be spent at public schools (this is the institutional protectionism or religious bigotry arguments) or people scream about “church and state!” The common myths surrounding the “separation of church and state” are often the result of the “Blaine Amendments.”
James G. Blaine was a Maine legislator and, at one point, a presidential hopeful who lived between 1830 and 1893. He was a member of Congress in the latter part of his life and was deeply concerned with the massive number of Catholic immigrants flooding into the country at the time. Public schools in the mid to late 1800s were largely protestant schools that were as religious in nature as many of today’s religious private schools. Many protestants like Blaine found the influx of Catholics as an existential threat to society, protestantism, and public schools in general. Catholics in many areas resisted their calls to assimilate into the overtly protestant public schools of the day and, with anti-Catholic bigotry at its peak in the mid-1800s, Blaine led the charge to ban public support for Catholic schools by introducing an amendment to the US Constitution in 1875. The amendment called for a ban on taxpayer money from flowing to any “religious sects,” a phrase that would not have applied to public schools at the time despite public schools engaging in protestant teaching and activities. Although his amendment narrowly failed to advance out of Congress, dozens of states took his amendment and added a version of it to their own constitutions and/or Codes. The only times parental rights and school choice have failed in courts have been when states have had strict “Blaine Amendments.” Until recently. The Supreme Court has finally stepped in multiple times to shoot down this historically bigoted and unconstitutional form of discrimination.