​Within legal limits, political protests are commonly held on public property. Recent protests at local public universities are an example. This type of demonstration is a way in which governments facilitate free speech. This does not, however, mean that the positions represented by protesters constitute the official position of the government. In fact, in a recent demonstration, protesters representing different positions each held their events at the same public university at the same time.

This is uncontroversial in the context of free speech, but a similar concept is highly contested in the context of another First Amendment right – religious freedom.

It seems obvious that if a government rule or practice keeps someone from acting on their beliefs, those who are prevented have had their right to religious exercise infringed. What if, however, the government provides a benefit but limits the use of that benefit to secular activities only? This is a burden on that religious practice, but some would argue that another constitutional principle, the prohibition on government establishment of religion, justifies that exclusion. (In a recent post I have argued that this asserted tension is a misconception).

The U.S. Supreme Court has addressed this scenario in recent cases. In one, the court ruled that a state cannot exclude a religious school from a playground safety grant, in another that parents can’t be prevented from using a state scholarship to attend a religious school.

Last week, the U.S. Court of Appeals heard oral argument in a similar case. In Loffman v. California Department of Education, the family of a five-year-old boy with autism challenged a state decision to refuse to offer educational services it would offer if the child were in public school or a secular private school because the parents would like to have their child attend a Jewish Day School with his siblings.

The judges seemed responsive to the basic claim of the Jewish parents but questioned whether the religious school also had legal “standing” (a legal interest the courts can vindicate). If the judge’s questions to the attorneys for the parents and the state are an indication, the panel of judges seem likely to follow the U.S. Supreme Court’s cases that prevent states from denying access to generally available benefits based solely on the fact that those benefits may be used by parents in a religious school setting.

Surely it is reasonable to understand the free exercise clause to forbid religious citizens to be treated less favorably than nonreligious citizens. Recognizing this does not require the government to establish one religion as particularly favored, coerce participation in a church, fund religious activity, or endorse any particular belief.

Certainly, some citizens may be troubled that beneficiaries of a grant program or scholarship or special education services will prefer religious over secular educational choices, but that is no reason to abandon neutrality between religious and nonreligious beneficiaries. Taxpayers may not like some of the choices of those benefited by government programs for a wide variety of reasons. Those concerns do not determine whether the program is constitutional, though. When the reason is that the taxpayer objects to the religious exercise of the beneficiary, that creates its own constitutional concerns, as courts seem to increasingly recognize.