In recent years, the Court has tried to walk a fine line in answering this question. In 2017, in Trinity Lutheran v. Comer, the Court’s majority opinion, authored by Chief Justice John Roberts, held that when government makes funding generally available, it cannot exclude institutions based on their religious status. In that case, Missouri rejected a church-run school from an environmental grant to resurface a playground. The Court ruled that the state had violated the First Amendment by excluding an institution “because of what it is — a church.” By contrast, the Court implied that government could exclude religious institutions from programs in which the funds would be used for specifically religious purposes. Resurfacing a playground is one thing; rebuilding a church sanctuary quite another.

Maine deployed this distinction in defending its tuition assistance program. In its view, the religious schools would presumably use the funds — that is, at least in part — to teach religion. Excluding religious schools from the program was thus constitutional.

In a 6-3 decision, the Supreme Court held that excluding religion and religious institutions from generally available government funding programs — whether it is based on religious status or religious use — violates the First Amendment. In the majority opinion, written by Roberts, the Court held that Maine “pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.” And importantly, the Court argued, it would be a mistake to read past cases as suggesting “that use-based discrimination is any less offensive to the Free Exercise Clause.”

Describing the precedents in this way is a bit of a stretch: The Court’s prior decisions had certainly implied that government could exclude religious institutions from funding programs on the basis of religious use. But there is good reason to think that the distinction was a mistake from the get-go. After all, it is all-too-easy for government to play semantics: When they exclude a religious school, is it because of its status as a religious school or because the funds will be used for religious purposes? Those permeable categories open the door for government to rebrand discrimination as needed to avoid constitutional obstacles.

What will be the likely impact of the decision? By its terms, it applies to cases where government is providing funding to private institutions for secular reasons and doing so on neutral terms. Notwithstanding concerns expressed by Justice Stephen Breyer, it does not allow government to simply fund religious institutions. And it does not allow government to fund religion unless it is part of a broad funding program available to all comparable institutions — religious and non-religious alike.

But that doesn’t mean its impact will be narrow both with respect to existing funding programs and new funding initiatives. To see the likely impact on existing funding programs, consider a 2018 decision issued by the New Jersey Supreme Court. New Jersey had announced a historic preservation grant program and awarded funds to, among other institutions, some churches that had historic value. The New Jersey Supreme Court concluded, however, that doing so violated the state’s rule against funding religious institutions. In the court’s view, these churches could be excluded because some of the funding would be used for a religious purpose — for example, to repair church sanctuaries.

Going forward, this sort of analysis is no longer good law. As long as the funding program advances a secular purpose — protecting historic buildings — the fact that some of the funds will incidentally be used for religious purposes will not authorize religious discrimination.

When it comes to new initiatives, yesterday’s ruling provides a strong incentive for religious communities to work alongside other groups to create new funding programs that advance important public policies. With all forms of religious exclusions now constitutionally prohibited, religious communities can rest assured new funding programs will not provide for the general public while excluding them.

Not surprisingly, given these bolstered constitutional protections, the Orthodox Union — consistent advocates for Jewish day school funding — has already expressed its commitment to “proactively pressing for policymakers … to ensure that any state and local education funding programs are fully available and accessible to nonpublic schools and their families as the Supreme Court has clearly mandated.” 

However, maybe the most important feature of yesterday’s decision isn’t the impact on funding. Yes, the door is now open not just for including religion in a host of funding programs, including historic preservation grants, environmental grants, security grants, and, maybe most importantly, school funding programs.

But the decision also speaks to core constitutional principles of neutrality and equality. It states unequivocally that religious citizens need not worry that the price of their religious commitments will be exclusion from funding programs geared towards solving secular policy interests that impact everyone. In this way, the decision protects not only the funding prospects of religious communities, but it protects the underlying principles that ensure the equal citizenship of all — religious or not.

All told, when it comes to both the principles and pragmatics of funding, yesterday’s decision ensures that religious institutions will no longer be left behind.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of JTA or J. The Jewish News of Northern California.