Supreme Court unity faces a looming test

School subsidies get boost

WASHINGTON, June 28, (RTRS): As the US Supreme Court navigated a difficult period in which it was short one member for more than a year, justices from across the ideological spectrum often managed to find common ground. That sense of unity promises to be soon put to the test.

The nine-justice court ended its 2016-2017 term on Monday with a flurry of rulings. When it resumes work in October, its recently restored conservative majority could become more assertive as the justices tackle big cases on whether the US Constitution lets businesses refuse to serve gay couples for religious reasons, presidential powers and manipulating electoral district boundaries for partisan gain.

Neil Gorsuch, Republican President Donald Trump’s appointee, joined the court in April, giving conservatives a 5-4 majority. Gorsuch already has established himself as among the most conservative and outspoken justices even before beginning his first full term.

“We will certainly see more cases where they are sharply divided,” Chicago-Kent College of Law professor Carolyn Shapiro said.

While partisan tensions in Washington have deepened since Trump took office in January, the Supreme Court largely remained above the fray.

Gorsuch

Equally

In the 14 months that the court operated with only eight justices following Justice Antonin Scalia’s death and was divided equally between liberals and conservative, it showed greater unanimity in its decisions than in recent years. During that time, the justices often sidestepped major rulings on divisive issues, resolving several cases narrowly and trying to avoid 4-4 votes that would leave legal questions unresolved.

The court even avoided a sharp ideological split in its decision on Monday on how to handle Trump’s contentious order banning people from six Muslim majority countries from entering the United States. The four liberal justices were silent as the court allowed parts of the order to go into effect and agreed to decide the legality of the policy in its next term.

The court already has agreed to hear several major cases in which the justices are likely to be divided on ideological lines, including one on the conflict between gay rights and religious freedom concerning a Christian baker from Colorado who refused to make a cake for a same-sex couple, citing his religious beliefs.

The justices will also weigh whether state legislative districts violate constitutional protections if they are drawn purely to gain partisan advantage in a case involving a Republican-configured electoral map in Wisconsin that could have major consequences for US elections.

The travel ban case, Trump’s first big Supreme Court battle, is a major test of presidential powers, with Trump’s administration arguing that the judiciary should show deference to the president on national security matters.

In the term that just ended, the court was able to decide all but two of the cases it heard. On Monday, the justices ordered that those cases, both on immigration-related issues, be re-argued in its next term, when Gorsuch would be able to participate. The action suggests the court was divided 4-4 along ideological grounds on those cases.

Meanwhile, the US Supreme Court on Tuesday threw out a lower court’s ruling prohibiting the use of public funds to pay for children to attend private religious schools, a day after it issued a major ruling narrowing the separation of church and state.

The justices ordered Colorado’s top court to reconsider the legality of school “voucher” programs in light of Monday’s ruling that churches and other religious entities cannot be categorically denied public money even in states whose constitutions explicitly ban such funding.

Access

In that ruling, which could bolster the case for vouchers and other subsidies to religious schools, the justices sided with a Missouri church that objected to being denied access to public grant money for a playground improvement project because the state’s constitution bans public funding of religious entities.

The justices on Tuesday also threw out a lower court ruling in a similar case in New Mexico over a state program that lends textbooks to schools, both public and private including religious ones, asking that court also to reconsider following Monday’s church ruling.

There is a fierce debate in the United States over school vouchers, which many religious conservatives advocate and people against government funding for religious purposes oppose. Republican President Donald Trump’s education secretary, Betsy DeVos, is a prominent supporter of such “school choice” plans.

The Colorado case arose after the Douglas County School District, outside Denver, enacted a voucher program in 2011 to help pay the tuition costs of attending certain private schools, most of which were religiously affiliated. The district argued that introducing competition into education would improve public schools.

Individual taxpayers and a group called Taxpayers For Public Education, backed by the American Civil Liberties Union, challenged the voucher program, arguing it violated a provision of the state constitution dating to the 19th century barring public funding for religious entities. Colorado’s Supreme Court in 2015 struck down the county’s program on that basis.

The school district, as well as Colorado’s state government and voucher supporters, appealed to the US Supreme Court. The district argued that the prohibition on funding for religious entities at the heart of the controversy is a so-called Blaine amendment, written into Colorado’s state constitution in 1876 as a form of anti-Catholic bias, “at a time when public institutions readily embraced Protestantism.”

Throwing out the state court’s ruling sends a strong signal that the high court “will not tolerate the use of Blaine amendments to exclude religious options from school choice programs,” said attorney Michael Bindas of the Institute for Justice conservative advocacy group, representing three families with children who had received vouchers.

The district said the state constitution’s ban runs afoul of the US Constitution’s guarantees of free exercise of religion and equal protection under the law. “The time to end this discrimination is now,” it added.