Could Justice Neil Gorsuch tip the scales on school vouchers?
Supreme Court Justice Neil Gorsuch’s first high-profile case could impact his own state of Colorado. On Wednesday the high court heard Trinity Lutheran Church of Columbia, Inc. vs. Comer, which considers whether Missouri can exclude faith-based organizations from state grant programs. A preschool that was otherwise eligible for a state program to refurbish playgrounds with rubber from old tires was denied participation because the school is run by a church. The state reasoned that the Missouri Constitution forbids funding of “sectarian” institutions.
Similar language in the Colorado state constitution was the reason the Colorado Supreme Court ruled 4-3 against Douglas County’s voucher program in 2015. A broad ruling from the Supreme Court for Trinity Lutheran Church could effectively bar states, including Colorado, from discriminating against faith-based organizations. The ruling would open the door to school choice programs in states that now have prohibited funding to religious schools. By neutralizing discriminatory state constitutional language, the court will give families greater choice in the education of their children and rectify a historic injustice perpetrated more than century ago.
Thirty-nine states have constitutional clauses similar to Missouri’s. These “Blaine Amendments” were adopted to prevent the funding of Catholic schools at a time when publicly funded “common schools” were pervasively protestant, requiring for example the reading of the Protestant King James version of the Bible and traditional Protestant prayers and hymns in class. The effort of Catholics to secure public funding for their own schools provoked nativist, anti-Catholic hostility. Politicians rode the wave of public sentiment. U.S. Rep. James Blaine of Maine tried to pass a constitutional amendment barring funding for Catholic institutions. He failed, but he did manage to require discriminatory language be required for territories seeking statehood. Every state that was admitted to the union after 1876 has such a clause.
The presence of Blaine Amendments has not stopped the rise of school choice programs. Presently, 28 states operate 58 school choice programs. Half of these programs are voucher/scholarship programs or state-funded education savings accounts where students can attend secular or religious private schools. The remainder are tax credits or deductions for tuition or donations to scholarship-awarding organizations. The U.S. Supreme Court and state courts have upheld tax incentive programs, but court support for voucher programs has varied.
Some state supreme courts have interpreted Blaine Amendments in a manner consistent with the First Amendment and allowed school voucher programs and other state aid to individuals served by faith-based institutions. Other state courts have ruled that such language forbids faith-based organizations from receiving state funds.
In Trinity Lutheran Church of Columbia, Inc. vs. Comer, the court could rule that Blaine language be interpreted as consistent with the First Amendment. According to the court, the First Amendment requires state actions “have a secular legislative purpose … its principal or primary effect must be one that neither advances nor inhibits religion … the statute must not foster ‘an excessive government entanglement with religion’ ” (Lemon vs. Kurtzman). Justices have upheld several state and federal government programs that include faith-based recipients including Ohio’s school voucher program in Zelman vs. Simmons-Harris (2002).
Like the Ohio program, Douglas County’s voucher program meets the Lemon test for being constitutional. The county’s appeal to the U.S. Supreme Court has not yet been taken up. A decision in the Missouri case could provide the answer.
There is reason to be optimistic. In Wednesday’s oral arguments, Justices Stephen Breyer and Elena Kagan and their conservative colleagues seemed sympathetic to arguments for the church. Breyer asked Missouri’s lawyer if the government can discriminate against faith-based organizations in the provision of general services like fire protection. The lawyer said no. Gorsuch followed up, “How is it that discrimination on the basis of religious exercise is better in selective government programs than general programs?”
That goes to the heart of the issue. Can state government discriminate against faithbased organizations and the free exercise of faith? Before July, we’ll have the answer.