Mark Storslee (University of North Carolina School of Law) has posted Free Exercise and Funding (101 Notre Dame L. Rev. 101 (forthcoming 2026)) on SSRN. Here is the abstract:
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 such 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. At minimum, this history provides a new vantage point for evaluating Carson and related cases. But even more, appreciating the complexity this evidence presents may also provide some important insights about the usefulness and limits of appeals to history in this area generally.
Highly Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum