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Opinion
Noah Feldman

The Supreme Court Has Just Eroded First Amendment Law

In an important church-and-state decision, the justices have effectively ended the centuries-old constitutional ban on direct state aid to the teaching of religion.

Private religious education got a boost from the court.

Private religious education got a boost from the court.

Photographer: Patrick T. Fallon/AFP/Getty Images

Corrected

In an extremely important church-and-state decision, the Supreme Court has held that if the state of Maine decides to pay for a child’s private education in lieu of a public one, it must allow its tuition money to be used at religious schools. The 6-3 decision, Carson v. Makin, profoundly undermines existing First Amendment law.

It represents the end of the centuries-old constitutional ban on direct state aid to the teaching of religion. And remarkably, it does all this in the name of religious liberty, giving the free-exercise clause of the First Amendment primacy over the establishment clause found in the exact same amendment.