Law & Courts

School Choice Implications in Religious Rights Case at High Court

By Mark Walsh — April 17, 2017 7 min read
Judge Neil M. Gorsuch is sworn in as a justice of the U.S. Supreme Court by Justice Anthony M. Kennedy at the White House April 10, as Gorsuch’s wife, Louise, and President Donald Trump watch. Gorsuch joins the court in time to hear a case involving a Missouri church that is being closely watched by advocates on both sides of the school choice issue.
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Advocates on both sides of the debate over private school choice are paying close attention to a case before the U.S. Supreme Court involving recycled tires—specifically, whether Missouri violated the Constitution in refusing to give a church a grant to use scrap tire material to improve its preschool playground.

The court’s decision in Trinity Lutheran Church of Columbia v. Comer (Case No 15-577), which it was slated to hear this week, could weaken or eliminate one of the last legal barriers to vouchers and tax credits for use at private religious schools: state constitutional provisions that strictly bar government aid to religion.

Missouri is one of some three-dozen states with such “Blaine amendments” in their state constitutions. The provisions are named for James G. Blaine, the 19th-century congressman who led an unsuccessful 1876 effort to amend the U.S. Constitution to prohibit public funding of religious schools at a time when the growing Roman Catholic population was pressing for government funding for parochial schools.

“Certainly, the Supreme Court could rule very broadly” in the Trinity Lutheran case, said Michael E. Bindas, a senior lawyer with the Institute for Justice, an Arlington, Va.-based group that has long been at the forefront of legal advocacy for school choice. “That would remove the state Blaine amendments from the arsenal of school choice opponents.”

Church-State Separation

The institute is one of many groups to file a friend-of-the-court brief on the side of Trinity Lutheran. Among those who have filed such a brief on the other side, in support of Missouri, is Steven K. Green, a professor of law and history at Willamette University College of Law in Salem, Ore., and an advocate of a high wall of separation between church and state.

If the Supreme Court were to rule that the Missouri state constitution’s language that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion” had to give way to Trinity Lutheran’s federal constitutional right to participate in the recycled-tire grant program, that would put the court’s stamp on “government funding of a church,” Green said.

“That would set in motion [a situation in which] the government could fund other aspects of religion,” including private school vouchers, he said. “There is a larger principle at stake.”

The ‘Pious or the Profane’

The Trinity Lutheran case stems from efforts by the church to improve its preschool playground, which is covered in pea gravel, by applying for Missouri’s scrap-tire grant program, which provides money to install safe, rubberized ground coverings that provide an environmentally friendly use for old tires.

Missouri officials turned down the church’s application, which otherwise ranked high on a set of neutral criteria, based on the state constitutional provision that bars direct or indirect government financial aid to churches.

Trinity Lutheran sued the state under its First Amendment right to free exercise of religion and its 14th Amendment equal-protection right. A federal district court dismissed the claims. It rejected the church’s free-exercise claim because the scrap-tire program involved a direct payment to a religious institution that would raise First Amendment establishment-of-religion concerns comparable to those cited by the Supreme Court in its 2004 decision in Locke v. Davey.

In that case, the justices held that the state of Washington could deny a scholarship to a student studying “devotional theology” without running afoul of the student’s free-exercise rights.

Trinity Lutheran appealed to the U.S. Court where a panel voted 2-1 to uphold the district court, expressing concern about the “direct grant of public funds to churches.”

In its brief to the Supreme Court, the church says there is no basis for the state to exclude it from the neutral grant program.

“A rubber playground surface accomplishes the state’s purposes whether it cushions the fall of the pious or the profane,” the brief says.

David A. Cortman, a senior counsel at the Alliance Defending Freedom, the Scottsdale, Ariz.-based group that is representing Trinity Lutheran, said in an interview that Missouri “is discriminating against the church not because it doesn’t meet the neutral criteria but because of its religious status.”

The state declined an interview request, but argues in its brief that “Trinity Lutheran remains free, without any public subsidy, to worship, teach, pray, and practice any other aspect of its faith however it wishes. The state merely declines to offer financial support.” On April 13, Gov. Eric R. Greitens, a Republican, said the state would no longer bar religious groups from the recycled-tire grant program, saying he did not expect the change to affect the Supreme Court case.

Cases in the Wings

The case has drawn significant interest from groups that are more interested in what the court’s eventual decision may mean for school choice.

The Supreme Court ruled in its landmark 2002 decision in Zelman v. Simmons-Harris that the federal Constitution’s establishment clause did not prohibit the inclusion of religious schools in a government voucher program when parents are making the decision where to direct the state aid.

But the state Blaine amendments have proved to be a barrier to the inclusion of religious schools in voucher programs and some other forms of state aid.

The National Education Association, which has often led the legal fight against the expansion of school voucher programs, filed a friend-of-the-court brief in support of Missouri emphasizing the theory that states may use their own constitutions to provide stronger individual rights than those guaranteed by the U.S. Constitution.

“Many state courts have departed from this court’s establishment clause precedents in construing their state constitutions to prohibit public funding of religion in ways that would be permissible under the establishment clause,” the NEA brief says.

Even as it considers the merits of the Trinity Lutheran case, the high court is holding on to two cases that address the application of state Blaine amendments to aid to religious schools.

One involves a New Mexico textbook-lending program for private schools and a New Mexico Supreme Court decision that Blaine amendment-like language in the state constitution barred the inclusion of religious schools in the program.

The other involves the unusual efforts by the Douglas County, Colo., public school district to create a tuition-scholarship program for students to attend private schools, including religious schools. The Colorado Supreme Court has blocked the program based on a Blaine-like, “no aid” provision in the state constitution.

Breaking New Ground?

The school district, the state, and a group of intervening parents in the Colorado case all appealed to the U.S. Supreme Court. Like the New Mexico appeal, the Colorado parties urge the court to rule that the state Blaine amendments violate federal constitutional rights of religious schools or parents.

The Douglas County district, the state, and the parents also have filed separate friend-of-the-court briefs in support of Trinity Lutheran.

“Both the Colorado and Missouri Blaine amendments share discriminatory, anti-Catholic origins that make their contemporary use to compel religious discrimination particularly unacceptable,” says the brief for the Douglas County district filed by Paul D. Clement, a former U.S. solicitor general and now a frequent litigator for private clients before the high court.

Bindas of the Institute for Justice represents the intervening parents who want to use the scholarships in Douglas County.

“A big question here is whether the court is going to go into the history of the Blaine amendments” in the Trinity Lutheran case, Bindas said. “Strictly speaking, the court doesn’t have to rule on the history of the Blaine amendments to rule for the church here.”

Many legal experts agree with that assessment, saying the Supreme Court, which is back at full strength with the addition of Justice Neil M. Gorsuch, could rule for Trinity Lutheran on narrow grounds and save the debate over the state Blaine amendments for the future.

“I don’t see this case as breaking new ground,” said Michael W. McConnell, a former federal appeals-court judge and a leading church-state scholar who teaches at Stanford University law school. He has joined a brief in support of Trinity Lutheran. “I see it as standing for long-standing principles that the government has to be neutral between religious and nonreligious organizations.”

However, Green, the Willamette University scholar, is worried that because the Supreme Court is taking up a case involving direct funding to a church, that “suggests to me that they are thinking of doing something significant.”

A version of this article appeared in the April 19, 2017 edition of Education Week as School Choice Implications in Religious Rights Case at High Court

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