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鈥攕pecifically, 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鈥檚 decision in (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 鈥淏laine amendments鈥� 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.
鈥淐ertainly, the Supreme Court could rule very broadly鈥� 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. 鈥淭hat would remove the state Blaine amendments from the arsenal of school choice opponents.鈥�
Church-State Separation
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 , 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鈥檚 language that 鈥渘o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion鈥� had to give way to Trinity Lutheran鈥檚 federal constitutional right to participate in the recycled-tire grant program, that would put the court鈥檚 stamp on 鈥済overnment funding of a church,鈥� Green said.
鈥淭hat would set in motion [a situation in which] the government could fund other aspects of religion,鈥� including private school vouchers, he said. 鈥淭here is a larger principle at stake.鈥�
The 鈥楶ious or the Profane鈥�
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鈥檚 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鈥檚 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鈥檚 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 鈥渄evotional theology鈥� without running afoul of the student鈥檚 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 鈥渄irect grant of public funds to churches.鈥�
, the church says there is no basis for the state to exclude it from the neutral grant program.
鈥淎 rubber playground surface accomplishes the state鈥檚 purposes whether it cushions the fall of the pious or the profane,鈥� 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 鈥渋s discriminating against the church not because it doesn鈥檛 meet the neutral criteria but because of its religious status.鈥�
The state declined an interview request, but that 鈥淭rinity 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.鈥� On April 13, Gov. Eric R. Greitens, a Republican, said the state would 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鈥檚 eventual decision may mean for school choice.
The Supreme Court ruled in its landmark 2002 decision in that the federal Constitution鈥檚 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, 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.
鈥淢any state courts have departed from this court鈥檚 establishment clause precedents in construing their state constitutions to prohibit public funding of religion in ways that would be permissible under the establishment clause,鈥� 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, 鈥渘o aid鈥� provision in the state constitution.
Breaking New Ground?
The , the , and a group of 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.
鈥淏oth the Colorado and Missouri Blaine amendments share discriminatory, anti-Catholic origins that make their contemporary use to compel religious discrimination particularly unacceptable,鈥� 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.
鈥淎 big question here is whether the court is going to go into the history of the Blaine amendments鈥� in the Trinity Lutheran case, Bindas said. 鈥淪trictly speaking, the court doesn鈥檛 have to rule on the history of the Blaine amendments to rule for the church here.鈥�
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.
鈥淚 don鈥檛 see this case as breaking new ground,鈥� 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 of Trinity Lutheran. 鈥淚 see it as standing for long-standing principles that the government has to be neutral between religious and nonreligious organizations.鈥�
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 鈥渟uggests to me that they are thinking of doing something significant.鈥�
