By Carolyn Phenicie
State efforts to expand school choice — everything from charter schools to tax credit scholarships to vouchers and education savings accounts — have exploded in the past decade.
Many state courts have blocked vouchers and ESAs, either temporarily or permanently, based on clauses in state constitutions, often known as Blaine Amendments, banning government aid to religious institutions, including schools.
Now a case before the Supreme Court this week could have a big impact on those state constitutional questions and perhaps plans by President Donald Trump and Education Secretary Betsy DeVos to put forth a federal school choice program. DeVos strongly backs allowing public money to pay student tuition at private and religious schools, and the first school Trump visited as president was a Catholic elementary school in Florida.
Added bonus: It will be among the first cases heard by Neil Gorsuch, whose 54–45 confirmation this month, following an attempted Democratic filibuster, brought the court back to its full nine members for the first time in more than a year.
WATCH: 74 Explains the Supreme Court — Why Trinity Lutheran Is Suing Missouri Over a Preschool Playground:
Trinity Lutheran Church of Columbia v. Comer concerns whether Missouri, in keeping with its own state ban on aid to religion, unconstitutionally discriminated against a church preschool seeking to participate in a taxpayer-funded program that recycles tires to use as playground surfaces.
The case is now suddenly in flux just 48 hours before oral arguments, after an announcement from the state’s now-Republican governor changed the state’s position.
Like most everything else in the country, the dispute involving the Trinity Lutheran Church preschool was affected by the 2016 election.
Former Missouri attorney general Chris Koster, a Democrat, wrote the brief defending the state’s denial of Trinity’s application for the funding. He ran unsuccessfully for governor last year and was succeeded by Republican Josh Hawley, who had filed a friend-of-the-court brief siding with the church. Since taking office in January, Hawley has recused himself from the case. James Layton, who served as solicitor general in Democratic administrations, will present oral arguments on the state’s behalf.
That Gorsuch, President Trump’s pick and a potential fifth conservative vote, will be hearing the case is also a result of Senate Republicans’ refusal last year to consider the nomination of Merrick Garland, then-President Obama’s nominee to fill the seat of the late Justice Antonin Scalia. Democrats planned to block Gorsuch’s nomination with a filibuster, at least partly in fury over the handling of Garland’s nomination, but the Republicans invoked the “nuclear option,” changing Senate rules to allow Supreme Court nominations to go forward on a simple majority vote.
As a federal court judge, Gorsuch didn’t decide cases specifically on laws banning state aid to religion or voucher programs, but he did uphold religious rights in the Hobby Lobby case that allowed a closely held corporation to refuse to provide birth control for its employees if doing so violates its owners’ religious beliefs.
The high court will hear oral arguments on Wednesday, with a decision due sometime before the end of the court’s term in late June. Here are seven things to know ahead of arguments:
1. Background: church, state, recycled tires
Missouri runs a grant program for nonprofits to resurface playgrounds with material made from recycled tires. It is funded by a tax on the sale of new tires. Trinity Lutheran Church in Columbia, Missouri, runs a preschool as “part of its ministry” and applied to the grant program.
The Missouri Department of Natural Resources ranks the applications it receives each year and then approves whatever number it can, based on available revenues from the tire tax. Trinity Lutheran’s application was ranked fifth out of the 44 submitted in 2012. The state awarded 14 grants that year, but it denied Trinity Lutheran’s application because it is affiliated with a church. The Department of Natural Resources cited a clause in Missouri’s constitution that says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion…”
The church sued but lost in lower federal courts. Other courts relied on a 2003 Supreme Court case, Locke vs. Davey, in which justices ruled 7–2 that Washington state could bar people studying for the ministry from a state-funded college scholarship program because Washington’s constitution prohibits funding religious instruction.
The question before the court now is whether excluding churches from otherwise neutral state aid programs violates constitutional protections guaranteeing free exercise of religion and equal protection under the law. Lower courts are split on whether the Locke precedent justifies the exclusion of all neutral aid programs or whether the specific circumstances play a role.
2. Plaintiffs see discrimination
The church argues that the Constitution’s prohibition on government establishing a religion — colloquially the “separation of church and state” — is irrelevant. The issue here, the church’s attorneys say, is that Missouri is prohibiting the parishioners of Trinity from exercising their religion and is discriminating against the church because it is a religious organization, even though a program like the one at issue doesn’t come close to establishing a religion.
“Recycled scrap tire material is not amenable in any way to religious purposes. It is wholly secular. There is no way for Trinity Lutheran to convert rubber protecting children from injury into the advancement of religious doctrines,” attorneys for the church wrote.
The Locke case is a bad comparison, the church argues, because the goals of the programs — keeping children safe on a playground versus training clergy — are so different. Better precedents, they say, are older Supreme Court cases that invalidated a Tennessee rule barring clergy from serving at state constitutional conventions and a Maryland law requiring public notaries to profess a belief in God.
They also argue that because the recycling program discriminates on the basis of religion, it should be held to “strict scrutiny,” meaning the government must have a very good reason for the discrimination.
3. Defendants see a fine line between worship and funding
Missouri — first through Sarah Pauley, then the director of the Department of Natural Resources, and now her successor, Carol Comer — says, in essence, that Missouri’s decision not to fund Trinity’s tire grant application doesn’t stop the church from worshiping as it sees fit. It just means the state won’t pay for it, and the U.S. Constitution offers no requirement that it must.
Missouri attorneys also argue that the Locke case is a faulty comparison, but for different reasons.
“A state’s refusal to support an aspiring pastor’s religious education surely exerts a greater pressure on free religious exercise than does a state’s refusal to subsidize a church daycare’s secular capital improvement project,” Missouri’s attorneys wrote.
As to the “strict scrutiny” argument, Missouri’s attorneys say that’s applicable only when a government is discriminating against a particular religion, not religion writ large. Discrimination against religion broadly only must be justified by “rational” arguments, which Missouri says include prohibiting favoring one religion over another, respecting taxpayers’ freedom of religion, and protecting religious groups from government interference.
In a last-minute twist, Missouri Gov. Eric Greitens announced April 13 that religious organizations could apply for and receive grants from the Department of Natural Resources like all other nonprofits.
Given the shift in the official state stance, the Supreme Court asked parties to “submit their views” on whether Greitens’s announcement affects the case. Those letters are now due to the court by noon Tuesday.
4. Churches argue on behalf of Trinity Lutheran
Most of the two dozen briefs siding with Trinity Lutheran come from church organizations, such as the Union of Orthodox Jewish Congregations of America and the United States Conference of Catholic Bishops. Religious school groups like the American Association of Christian Schools and the National Catholic Education Association (which is a party to the bishops’ brief) also sided with Trinity Lutheran.
Those groups contend that nothing but the “most compelling circumstances,” as the bishops put it, permit discrimination against religious entities, and there is “no compelling, or even legitimate,” interest in denying Trinity Lutheran from being part of the tire recycling program. Official discrimination based on religion is no less stigmatizing than any other type of discrimination, the bishops’ conference wrote.
Upholding the standard adopted in the Missouri case nationwide could imperil government funding for all sorts of public service programs run by religious groups, like Meals on Wheels or Habitat for Humanity, the groups added.
5. Civil-liberties groups back the state
Groups arguing for the separation of church and state, such as the ACLU and the Americans United for Separation of Church and State, filed briefs on behalf of Missouri.
The ACLU, for instance, says the Constitution not only allows Missouri to ban aid to the church but requires it. The group says that although the Supreme Court has allowed government funds to go to religiously affiliated organizations before, like schools and colleges, it has not allowed tax dollars to flow directly to a church. At a minimum, the group wrote, the state can’t give Trinity Lutheran a grant without a safeguard that the money won’t be used for a religious purpose.
The National Education Association, the country’s largest teachers union, also filed a brief, arguing that state courts have looked to their own constitutions for guarantees of religious liberty, and the Supreme Court shouldn’t overrule those decisions and institute one national standard regarding the use of public funds for non-sectarian purposes at religious institutions.
6. What’s a Blaine Amendment?
The restriction is named after Sen. James Blaine of Maine, who proposed an amendment to the U.S. Constitution in 1875 banning public aid to religious institutions, in particular schools. It didn’t pass the Senate, but more than 30 states adopted similar provisions to their state constitutions.
Some observers in the Missouri case have pointed to Blaine Amendments’ suspect origins, arising at a time of backlash against waves of immigrants from Catholic countries.
“These provisions’ origins, regardless of how the laws are justified or described today, are not easily disentangled from nineteenth-century America’s pervasive anti-Catholicism and nativism or from a broader ideological, nationalist project of using state-mandated public schooling to inculcate ‘American’ values and loyalties,” Rick Garnett, a law professor at Notre Dame, wrote on SCOTUSblog.
In a separate SCOTUSblog post, Richard Katskee, of Americans United for Separation of Church and State, noted that the history of the Blaine Amendment is more complicated than that, and that the clause at issue in the Missouri constitution dates to before the federal Blaine Amendment was proposed.
The amendments have been an issue in legal challenges to voucher and education savings account programs in at least three states — Arizona, Nevada, and Colorado.
7. How could this impact President Trump’s education agenda?
The Supreme Court in 2002 said a voucher program in Ohio did not violate the Establishment Clause of the U.S. Constitution because the money went first to parents who then decided among a number of options, including parochial schools.
Several state voucher and education savings account programs, though, have been overturned by state courts, relying on provisions in their own constitutions that ban aid to religiously affiliated schools.
Upholding the lower court’s reasoning, allowing states to prohibit aid to religious institutions, even if the purpose is nonsectarian, could “prevent lower-income students from attending religiously affiliated primary schools in the first place,” Christian Schools International wrote in a brief.
Colorado submitted a separate brief detailing its rock-and-a-hard-place situation: A state court overruled a school district’s voucher program, but federal courts said a separate scholarship program couldn’t exclude religious schools. Colorado is looking for the justices to use the Missouri case to give clear guidance on the issue.
“Given the conflict between the state and federal courts in Colorado, it appears state policymakers are caught between either choosing which precedent to violate — state or federal — or abandoning public benefits programs that allow money to flow, even indirectly, to religious institutions,” attorneys for the state wrote.