The United States Supreme Court has struggled with the countervailing directives of the Free Exercise Clause and the Establishment Clause for decades. One area in which this battle has been particularly contentious is the issue of public funding of religious schools. On one hand, opponents argue that such funding is an impermissible co-mingling of church and state, thereby violating the Establishment Clause. Meanwhile, proponents of public funding of religious schools argue that, to withhold funding from religious schools would place a burden on those wishing to send their children to religious schools, thereby impermissibly preventing individuals from practicing their faith and violating the Free Exercise Clause. In two recent cases involving public funding of religious education, Locke v. Davey and Zelman v. Simmons-Harris, the Court arrived at outcomes that seem at first glance to be as difficult to reconcile as the Religion Clauses themselves; Locke resulted in the lack of public funding for religious education, while in Zelman the receipt of public funds by religious schools was declared constitutional. The Zelman opinion, though, was primarily a pronouncement that states may fund religious schools if they affirmatively choose to do so, while the Locke opinion articulated that a state cannot be forced to fund religious education if it chooses not to do so. The Court, unfortunately, did not clarify where the first principle left off and where the second principle picked up. The two cases look at first glance as though their outcomes are in opposition. Locke and Zelman do, however, have important distinguishing characteristics. The Zelman and Locke decisions, juxtaposed both in time and in subject matter, indicate that the future of jurisprudence of public funding for religious schools will be murky at best. The Court has seemingly conveyed that there is a standard to be used-that of the First Amendment of the U.S. Constitution-except when one of fifty potential other standards might be used-those of the various state constitutions. Taking into account the fact that some states have statutes on point in addition to or instead of constitutional provisions, the matter becomes even more confusing. This area of the law has the potential to leave educators, legislators, and judges in every state wondering about the permissibility of proposed programs and those already in effect.

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