STATE SUPREME COURTS AND VOUCHERS: WTF?
The U.S. Supreme Court opened one door. State constitutions are holding several others shut.
There is a fascinating little constitutional food fight happening in American education.
The U.S. Supreme Court has spent the last decade making it increasingly difficult for states to exclude religious schools from generally available private-school-aid programs. Meanwhile, state supreme courts are reminding everyone that the Constitution comes in two flavors: federal and state.
And sometimes the second one has teeth.
Welcome to the Great Voucher Constitutional Shuffle.
The basic question is deceptively simple:
Can the government use taxpayer dollars to help parents send children to private schools—including religious schools?
The U.S. Supreme Court has increasingly answered: If a state creates a generally available private-school benefit, it generally cannot exclude religious schools simply because they are religious.
But that does not mean every voucher, Education Savings Account (ESA), or publicly funded private-school scheme automatically passes constitutional inspection.
That is where state constitutions enter the room wearing boxing gloves.
And WTF is exactly the appropriate reaction.
FIRST, LET'S CLEAN UP ONE IMPORTANT MISUNDERSTANDING
The U.S. Supreme Court did not declare that America is a Christian nation.
Nor did it declare that states must create voucher programs.
What the Court has done is substantially change the constitutional rules governing religious participation in government benefit programs.
In Zelman v. Simmons-Harris (2002), the Court upheld an Ohio voucher program against an Establishment Clause challenge, emphasizing that the program operated through genuine private choice: government aid reached religious schools because parents independently chose them.
Then came the trilogy that changed the legal landscape:
Trinity Lutheran v. Comer (2017).
Espinoza v. Montana Department of Revenue (2020).
Carson v. Makin (2022).
In Espinoza, the Court held that Montana could not exclude religious schools from a generally available scholarship program solely because of their religious character.
Then Carson went further.
Maine had a tuition-assistance program for families in communities without public secondary schools. The state excluded schools providing religious instruction.
The Supreme Court said no.
The exclusion violated the Free Exercise Clause because Maine was denying an otherwise available benefit based on the school's religious exercise.
That's a very big constitutional development.
But here's the part that gets lost in the political shouting:
The Supreme Court did not say that every form of public funding for every private religious institution is constitutional.
It said something considerably more specific.
And that distinction matters.
THE STATE SUPREME COURTS ARE NOT DONE
State constitutions contain their own education clauses, spending restrictions, religious-aid provisions and requirements governing public schools.
Those provisions don't simply disappear because the U.S. Supreme Court has interpreted the federal Free Exercise Clause broadly.
The battlefield has therefore shifted.
Instead of saying:
"Religious schools can't get public money because they're religious."
litigants increasingly argue:
"This particular program violates our state's constitutional requirements governing education, public spending, accountability or state control."
That's a very different lawsuit.
And it is producing very different results.
OKLAHOMA: THE REALLY INTERESTING ONE
Oklahoma provided one of the clearest recent demonstrations that the federal voucher cases did not settle everything.
The issue wasn't an ordinary private-school voucher.
It was St. Isidore of Seville Catholic Virtual School, a proposed publicly funded religious charter school.
The Oklahoma Supreme Court concluded that the arrangement violated the Oklahoma Constitution and state law, including provisions concerning public money and sectarian control. It ordered the charter contract rescinded.
Then the case went to Washington.
And something extraordinary happened.
The U.S. Supreme Court divided 4–4 in May 2025, with Justice Barrett not participating. The Court therefore affirmed the Oklahoma Supreme Court's judgment without a written opinion.
Translation:
The Oklahoma decision stayed standing.
That did not create a sweeping nationwide precedent explaining exactly how every state must treat religious charter schools.
But it did leave Oklahoma's prohibition intact.
And that is a very important distinction.
A 4–4 affirmance is not the same thing as the Court announcing a new national constitutional rule.
WYOMING: THE VOUCHER FIGHT KEEPS MOVING
Wyoming offers another reminder that voucher litigation isn't simply a matter of asking whether vouchers are constitutional in the abstract.
The state's Education Savings Account program was challenged, and a lower court injunction temporarily blocked the program.
The Wyoming Supreme Court subsequently lifted that injunction, allowing the state to move forward while the underlying constitutional litigation continues.
In other words:
The program can operate while the constitutional argument remains alive.
That is not the same as saying the program has received a final constitutional blessing.
Law, as it turns out, does not always come with a neat little green "APPROVED" stamp.
FLORIDA ALREADY HAD THIS FIGHT
Back in 2006, the Florida Supreme Court struck down a voucher program in Bush v. Holmes.
The case centered on Florida's constitutional education provisions and the state's obligation to maintain a uniform public-school system.
The court concluded that the challenged program violated the state constitution.
The important lesson wasn't necessarily that every voucher program everywhere was unconstitutional.
It was that state education clauses can impose requirements that exist independently of the federal Establishment Clause.
That distinction has become increasingly important as federal religion jurisprudence has evolved.
AND THAT'S THE REAL LEGAL SHIFT
For decades, one of the major weapons against publicly funded religious education was the so-called Blaine Amendment or similar state "no-aid" provision.
More than 30 states have constitutional provisions restricting public aid to religious institutions, although their language and historical origins vary.
The provisions emerged from the religious and political conflicts of the 19th century, including intense anti-Catholic sentiment surrounding the common-school movement.
The federal Blaine Amendment proposed in 1875 never became part of the U.S. Constitution.
But versions of the idea became embedded in numerous state constitutions.
For generations, those provisions were important barriers to public support for religious schools.
Then the Supreme Court changed the game.
ESPINOZA: THE OLD BLAINE-AMENDMENT DEFENSE TAKES A HIT
In Espinoza, Montana's tax-credit scholarship system became the vehicle for a much larger constitutional fight.
The Supreme Court held that Montana could not use its no-aid provision to exclude religious schools from an otherwise available scholarship program solely because they were religious.
That was a significant limitation on state constitutional provisions of this kind.
The argument essentially became:
A state doesn't have to create a private-school-aid program. But if it creates one, it can't discriminate against participants because they are religious.
Then Carson made the rule harder for states to evade by drawing a distinction between a school's religious identity and its religious instruction.
The Court rejected Maine's exclusion of schools that provided religious instruction and held that the state's "nonsectarian" requirement violated the Free Exercise Clause.
That's why the old argument—
"Our state constitution says no money to religious schools, end of story."
—is no longer enough.
BUT HERE COMES THE STATE-CONSTITUTIONAL ESCAPE HATCH
If a state cannot simply say:
"No religious schools!"
what can it say?
Potentially:
"No program that violates our constitutional requirements for public education."
That is the new battlefield.
State constitutional lawsuits can focus on questions such as:
- Does the state constitution require the legislature to maintain a public-school system?
- Does it require that system to be uniform, thorough, efficient or adequate?
- Can the legislature divert public education dollars into a parallel private system?
- What accountability requirements must accompany public money?
- Can a publicly funded educational institution operate outside public governance?
- Does the state constitution require public schools to remain free from sectarian control?
Notice what happened.
The argument moves from:
"We don't like religious schools receiving money."
to:
"What exactly does our state constitution require the government to provide—and what are the constitutional limits on how it spends that money?"
That is a much tougher question.
THE VOUCHER PEOPLE HAVE A NEW FAVORITE WORD: ESA
Enter the Education Savings Account.
The traditional voucher model is relatively straightforward:
State → private school
The ESA model is more complicated:
State → parent-controlled account → educational expenses
Parents may potentially use ESA funds for private-school tuition, tutoring, curriculum, online education and other approved educational expenses, depending on the state's law.
That creates a legal argument based on private choice.
The government isn't supposedly selecting the religious school.
The parent is.
That private-choice mechanism has been enormously important in the Supreme Court's voucher jurisprudence.
And ESA advocates have embraced it enthusiastically.
But changing the plumbing doesn't necessarily answer every constitutional question.
FOLLOW THE MONEY
Here's where the debate gets interesting.
Traditional public schools operate under a massive regulatory structure.
They have public boards.
They have public meetings.
They have public records requirements.
They employ certified teachers under state rules.
They administer state assessments.
They must follow special-education laws.
They generally cannot pick and choose which children they educate.
They are accountable to taxpayers.
Private schools operate differently.
And religious schools have additional constitutional protections concerning religious doctrine, curriculum, hiring and institutional autonomy.
So when public money moves into the private sector, a fundamental question appears:
How much accountability comes with the money?
And there is a second question:
How much accountability can the state constitutionally impose without violating religious freedom?
That is where the next generation of litigation is likely to become extremely complicated.
THE GREAT CONSTITUTIONAL TUG-OF-WAR
On one side is the Free Exercise Clause.
Its basic principle is that government cannot discriminate against people or institutions because of religion when providing generally available public benefits.
On the other side are state constitutional provisions governing education, public spending and church-state relationships.
And somewhere in the middle is the First Amendment's Establishment Clause.
Except that after Carson, the old Establishment Clause argument has considerably less bite in private-choice programs.
The Supreme Court itself has emphasized that a neutral benefit program involving private choice can provide aid that ultimately reaches religious schools without necessarily violating the Establishment Clause.
So the constitutional chessboard now looks something like this:
Free Exercise:
"Don't discriminate against religious participants."
State Constitution:
"Don't violate our state's rules governing public education and public money."
Establishment Clause:
"Don't establish religion."
Private Choice:
"Parents—not government—made the selection."
And the lawyers say:
Excellent. See you in court.
THIS IS WHY STATE SUPREME COURTS MATTER
The federal Constitution establishes a floor.
State constitutions can sometimes provide additional protections or impose additional structural requirements—so long as those requirements do not conflict with federal constitutional rights.
That means a state supreme court can still matter enormously in determining whether a particular voucher or ESA program survives.
But it cannot simply revive a state religious-exclusion rule that the U.S. Supreme Court has already determined violates the federal Free Exercise Clause.
That is the post-Espinoza, post-Carson reality.
The question is no longer simply:
"Are vouchers constitutional?"
That's too crude.
The better questions are:
What does this particular program do?
Where does the money go?
Who controls it?
What constitutional duty does the state have toward its public schools?
What conditions can the state attach to public funds?
What restrictions discriminate against religion?
And what restrictions merely enforce neutral rules applicable to everyone?
Those questions are going to keep state supreme courts very busy.
AND THEN THERE'S THE POLITICAL QUESTION
Here is the part nobody should pretend is merely legal.
Voucher policy is also a fight over what Americans think public education is supposed to be.
Is public education a constitutional institution that government has a duty to maintain?
Or is education primarily a service that government should finance while allowing families to shop among competing providers?
Should public dollars follow students wherever parents choose?
Should religious schools receiving those dollars be subject to the same accountability requirements as public schools?
Should schools receiving taxpayer money be required to follow public civil-rights rules?
How much religious autonomy should publicly subsidized schools retain?
And perhaps the biggest question:
Should taxpayers finance religious education at all?
The Supreme Court has answered some constitutional questions surrounding that last issue.
It has not answered all of them.
THE NOVEMBER QUESTION
So when voters encounter school-choice proposals, candidates and ballot fights this fall, the useful questions are not simply:
"Voucher: yes or no?"
Ask what the proposal actually does.
Ask:
How much money is involved?
Who qualifies?
Can the money be used for religious education?
What accountability follows the money?
What happens to public-school funding?
What does the state constitution say about public education?
What civil-rights protections apply to participating schools?
Who regulates the program?
And what happens if a private school takes public money but remains free to operate by rules fundamentally different from those imposed on public schools?
Those are not minor details.
They are the entire argument.
THE BOTTOM LINE
The U.S. Supreme Court has unmistakably moved the constitutional goalposts.
Zelman opened the door for private-choice programs.
Trinity Lutheran strengthened protection against religious-status discrimination.
Espinoza sharply limited the use of state no-aid provisions to exclude religious schools.
Carson extended that principle to religious instruction itself.
But the story did not end there.
State supreme courts are still in the game.
Oklahoma demonstrated that publicly funded religious charter schools can still face formidable state constitutional barriers—and its decision survived the U.S. Supreme Court's 4–4 split in 2025.
Wyoming demonstrates that ESA litigation can continue even while a program operates.
And across the country, state education clauses remain an important battleground over how far legislatures can go in moving public education dollars into private hands.
So, yes:
WTF.
The voucher wars have moved from one constitutional battlefield to another.
The U.S. Supreme Court has made it considerably harder for states to say "religious schools don't get public money."
State courts are now being asked a different question:
"How much public education can a state privatize without violating its own constitution?"
That fight is nowhere near over.
And for voters, the important thing is to know where candidates and ballot measures stand on public-school funding, private-school subsidies, religious-school participation, accountability, civil-rights protections, and the constitutional separation of government and religion.
Those positions are matters for voters to evaluate for themselves—not something a court or an AI should decide for them.
Because apparently, in 2026 America, even the school voucher has a lawyer.
And probably three appeals.
SOURCES & LINKS
State Supreme Courts, Vouchers, ESAs & Religious-School Funding
U.S. SUPREME COURT — THE KEY FEDERAL CASES
- Zelman v. Simmons-Harris (2002)
The landmark voucher case. The Court upheld Ohio's voucher program against an Establishment Clause challenge, emphasizing that aid reached religious schools through the independent choices of parents.
U.S. Supreme Court docket
GovInfo — Full Supreme Court decision
Cornell Legal Information Institute — Full opinion - Trinity Lutheran Church of Columbia, Inc. v. Comer (2017)
Important precursor to Espinoza. The Court held that government generally may not exclude an otherwise eligible organization from a public benefit solely because of its religious character. - Espinoza v. Montana Department of Revenue (2020)
One of the central cases in the modern voucher/religion debate. The Court held that Montana could not exclude religious schools from a generally available scholarship program solely because of their religious character.
U.S. Supreme Court — Espinoza search and case materials
U.S. Supreme Court — Espinoza docket
Cornell Legal Information Institute — Espinoza opinion and dissents - Carson v. Makin (2022)
The case that substantially expanded the federal protection for religious participation in state tuition-assistance programs. The Court rejected Maine's exclusion of schools that provided religious instruction.
U.S. Supreme Court — Full Carson opinion
U.S. Supreme Court — Carson docket
STATE SUPREME COURT BATTLEGROUNDS
5. Oklahoma — Drummond v. Oklahoma Statewide Virtual Charter School Board
The Oklahoma Supreme Court ruled in 2024 that the contract creating St. Isidore of Seville Catholic Virtual School violated provisions of the Oklahoma Constitution.
This is particularly important because it involved a public charter school operated as a religious institution, rather than an ordinary private-school voucher.
Oklahoma Supreme Court decision — Drummond v. Oklahoma Statewide Virtual Charter School Board
The case subsequently reached the U.S. Supreme Court. The Court divided 4–4 in 2025, leaving the Oklahoma judgment in place without establishing a nationwide rule from the tie vote.
U.S. Supreme Court materials concerning St. Isidore
6. Florida — Bush v. Holmes (2006)
A foundational state voucher case.
The Florida Supreme Court struck down the challenged Opportunity Scholarship Program under the Florida Constitution's education provisions, concluding that the program created a separate publicly funded system outside the constitutionally required public-school system.
This case is especially useful for understanding the argument that state education clauses can provide an independent basis for challenging vouchers even after federal Establishment Clause jurisprudence changed.
7. Wisconsin — Davis v. Grover (1992)
The Wisconsin Supreme Court upheld the Milwaukee Parental Choice Program against a challenge based on the state's constitutional education provisions.
The decision is important because it illustrates the opposite interpretation from Florida: the state's constitutional requirement to maintain public schools does not necessarily prevent the legislature from funding alternative educational options.
8. Indiana — Meredith v. Pence (2013)
The Indiana Supreme Court upheld the state's school-choice program.
The case is useful because Indiana's court treated the constitutional obligation to maintain a public-school system as compatible with legislative funding of other educational options.
STATE CONSTITUTIONAL PROVISIONS
9. State Constitutional "No-Aid" / Blaine Provisions
The National Conference of State Legislatures provides useful background on state constitutional provisions affecting religion, education and public funding.
National Conference of State Legislatures
These provisions vary considerably from state to state. They should therefore not be treated as one giant, identical "Blaine Amendment."
HISTORICAL BACKGROUND
10. Congressional Research Service
The Congressional Research Service provides nonpartisan background on constitutional issues involving religion, education and government funding.
Congressional Research Service
11. U.S. Constitution — First Amendment
The National Archives provides the text of the First Amendment, including both the Establishment Clause and Free Exercise Clause.
National Archives — Bill of Rights
A PARTICULARLY IMPORTANT DISTINCTION
The cases above should be read with one major distinction in mind:
The U.S. Supreme Court has restricted states' ability to exclude religious schools from generally available private-school-aid programs solely because those schools are religious.
That does not mean the Court has held that every voucher or ESA program is constitutional.
State constitutional challenges can involve separate questions concerning:
- the state's constitutional duty to provide public education;
- education funding;
- uniformity or adequacy requirements;
- public-school governance;
- public accountability;
- use of public funds;
- religious control of public institutions; and
- other provisions of state constitutions.
That distinction is critical when discussing the current state-court voucher battles.
BEST PRIMARY SOURCES TO BOOKMARK
If you want the shortest possible research library for this subject, start with these five:
1. Zelman v. Simmons-Harris — voucher/private choice
Supreme Court / GovInfo decision
2. Espinoza v. Montana Department of Revenue — religious status
Supreme Court case materials
3. Carson v. Makin — religious instruction/use
Full Supreme Court opinion
4. Drummond v. Oklahoma Statewide Virtual Charter School Board — religious charter school/state constitution
Oklahoma Supreme Court decision
5. U.S. Constitution, First Amendment — Establishment and Free Exercise Clauses
National Archives — Bill of Rights
One caution for the article
A few of the specific 2026 state litigation claims in the original draft—particularly the descriptions of current Utah, Wyoming, Maine and Vermont litigation—should be verified against the latest court filings before publication. The federal cases and Oklahoma decision above are much easier to source directly from primary court records.