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In 2002, the Supreme Court decided Zelman v. Simmons-Harris, a case concerning whether the First Amendment prohibition against Congress establishing a religion prevents a state from providing tuition monies to parents and allowing them to use that aid to enroll their children in a private school of their own choosing, without regard to whether the school is religiously affiliated. In a narrow 5–4 ruling, the Court held that such school voucher plans are constitutionally permissible, so long as the money that flows to the parochial schools results from the true choice of schools by parents.

In two recent cases, the current Court has shown even greater willingness to erase distinctions for available funding between public and religious schools. In the first case, Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Court held that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny” (p. 2015). At issue was participation in a program for playground improvement under which religious schools had been specifically barred.