It took only one day for the ripple effects of the U.S. Supreme Court’s decision in Trinity Lutheran Columbia Church Inc. v. Comer—which held state governments must, in some cases, directly fund religious institutions—to take hold.
On Tuesday, the Court issued orders directing the Colorado and New Mexico supreme courts to reconsider decisions that had ruled against public funding of religious schools. The decisions were based on Blaine amendments, which prohibit state governments from directly funding religious institutions or activities. Tuesday’s action by the Supreme Court calls the very constitutionality of those amendments into question.
One case the Court returned for reconsideration is Douglas County School District v. Taxpayers for Public Education. In 2015, the Colorado Supreme Court ruled against a county school district voucher program that would have allowed students to use public dollars to enroll in private schools, including religious ones. According to the Colorado Supreme Court, the state’s own Blaine amendment prohibited such funding; it blocked the program. Voucher supporters appealed to the Supreme Court, arguing that the ruling—and Colorado’s Blaine amendment—violated the First Amendment by excluding religious institutions from government benefits.
The other case the Court sent back for reconsideration is New Mexico Association of Nonpublic Schools v. Moses, a 2015 case that also ruled against a state program that the court found to directly subsidize religious institutions. In this case, New Mexico had a program through which the state would lend publicly owned textbooks to students attending both public and private schools, including religious ones. The New Mexico Supreme Court ruled the program violated the state’s Blaine amendment and struck it. Supporters appealed to the Supreme Court.
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The question of to what degree government funding of religious schools is a violation of the First Amendment’s Establishment Clause—which prohibits the government from either establishing, favoring, or disfavoring, religious beliefs and institutions—is not a settled one, and the U.S. Supreme Court’s actions on the Colorado and New Mexico cases suggest it’s an issue the Court will eventually come back to in the next couple of terms.
In 2002, the Supreme Court upheld an Ohio voucher program that allows students to attend religious schools, ruling that it did not violate the Establishment Clause. That case involved an Ohio scholarship program that provided tuition aid in the form of vouchers for certain students in the Cleveland City School District. Tuition aid was distributed to parents according to financial need. Recipients were then free to enroll their children in schools of their choosing, regardless of whether they were public, private, nonreligious, or religious.
According to documents from the case, in the 1999-2000 school year, 82 percent of the private schools participating in the Cleveland voucher program had a religious affiliation and 96 percent of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students enrolled in those schools were from families at or below the poverty line. A group of Ohio taxpayers sued to block the program, arguing the direct aid violated the First Amendment’s Establishment Clause. The Supreme Court disagreed on the grounds the aid was going to the students, not the schools—thus, it said, the program supported students, not religious institutions.
It is that 2002 Supreme Court decision that has largely helped keep in place voucher programs that funnel state dollars into religious schools. And its decision in Trinity Lutheran on Monday greatly expands the amount of state dollars that can now go to religious schools.
To start with, the Roberts Court majority opinion in Trinity Lutheran largely does away with the fiction that government aid to students to attend religious schools is only a benefit to the student and not those schools ultimately receiving the tuition dollars subsidized by the state. As Justice Sonia Sotomayor pointed out in her dissent, and as Trinity Lutheran itself admitted before the Court during oral arguments, play is an important part of the church’s ministry. By default, then, the playground is part of that ministry. Even so, the Supreme Court noted that the church could apply for and obtain public funds for the playground. Under Trinity Lutheran’s logic, therefore, a religious school that needs an improvement to its cafeteria could apply for and be directly granted state dollars for that upgrade, even if that school simultaneously excludes students of other faiths or refuses to admit students with otherwise protected identities. (Take, for example, the school in Michigan that refused to admit a student with disabilities on the grounds that its decision is a matter of ministerial policy not reviewable by the courts.)
Furthermore, with Betsy DeVos at the helm of the Department of Education, it is all but guaranteed that the Trump administration sees an opportunity with the Trinity Lutheran decision to greatly expand direct funding of religious schools. Despite the fact that the majority insists the decision is a narrow one applying only to this situation, Justice Neil Gorsuch in his concurring opinion set out a roadmap for future funding challenges. This attempts to erase the line between private religious belief and public religious practice, a departure from First Amendment law so radical not even Justice Samuel Alito signed on to his opinion. A concurring opinion does not have the weight of precedent and therefore cannot directly resolve future similar cases. But as with Gorsuch’s concurring opinion while on the U.S. Court of Appeals for the Tenth Circuit in Burwell v. Hobby Lobby, those opinions can find themselves part of a majority opinion that does carry the weight of precedent, sometimes even in a very short amount of time.
The earliest test of Gorsuch’s concurring opinion in Trinity Lutheran could easily come from either the Colorado or New Mexico cases. No date for a hearing on the cases has yet been scheduled, so it is too early to know whether the Colorado and New Mexico decisions ultimately stand or fall. Meanwhile, conservative legal advocacy groups continue to push litigation in states like Montana and Nevada for direct government spending on religious schools, all but guaranteeing a future Supreme Court showdown.
By the time that happens, it could be Justice Gorsuch, rather than Chief Justice John Roberts,writing an opinion in favor of religious challengers. Every indication, from his time on the Tenth Circuit to his short time on the highest Court bench so far, indicates that he intends to make expanding constitutional protections for conservative Christians a cornerstone of his judicial legacy.