Tomorrow, school choice will have its most important court date since 2002. Fifteen years ago, the U.S. Supreme Court ruled in Zelman v. Simmons-Harris that voucher programs that include religious schools do not violate the First Amendment’s establishment clause. In a pivotal win for school choice, the majority judged that there is no violation of the establishment clause so long as students are free to choose among sectarian and non-sectarian options.
When the Court hears oral arguments in Trinity Lutheran Church v. Pauley tomorrow, it will be positioned to issue a decisive bookend to Zelman. In Trinity Lutheran, the Court will decide whether explicitly excluding religious options from public-aid programs violates the First Amendment’s free-exercise clause and the Fourteenth Amendment’s equal-protection clause. In other words, having determined in Zelman that states are constitutionally permitted to include religious schools in school-choice programs, the Court will now decide whether states are prohibited from discriminating against religious schools when providing public services.
As summarized by SCOTUSblog, Trinity Lutheran Church v. Pauley began in 2012. Trinity Lutheran Church of Columbia, Mo., which operates a daycare and pre-school, applied to a state grant program that helps non-profits pay to install rubber playground surfaces. The Missouri Department of Natural Resources denied Trinity Lutheran’s application, despite having ranked it fifth out of 44 submissions in a competition that resulted in 14 grants. The department said it was obliged to reject Trinity Lutheran’s bid because a provision in the Missouri state constitution bars the state from providing funds to religious entities. Trinity Lutheran sued in federal district court, arguing that its exclusion was a violation of free-exercise and equal-protection rights.
The district court rejected Trinity Lutheran’s claims, ruling that to do otherwise would raise “antiestablishment concerns.” As justification, the court cited the Supreme Court’s ruling in Locke v. Davey (2004), which allowed Washington State to deny public scholarship funding for devotional-theology degrees. On appeal, in a divided decision, the Eighth Circuit also cited Locke in upholding the district court’s ruling. Now, Trinity Lutheran hopes for a different outcome at the Supreme Court.
At issue is Missouri’s so-called Blaine amendment — a provision added to many state constitutions in the late 1800s as part of the anti-Catholic response to the nation’s then-fledgling parochial-school system. These provisions were named after Speaker of the House James G. Blaine, who in 1875 proposed an amendment to the U.S. Constitution stipulating that “no money raised by taxation in any State for the support of public schools . . . shall ever be under the control of any religious sect.” Though Blaine’s proposal narrowly failed, falling short of the necessary two-thirds vote in the Senate by only four votes, his imitators were more successful in the states. Eventually, as many as 40 states had adopted Blaine amendments or passed similar laws. Today, Blaine amendments are still on the books in some 37 states.
The discriminatory origin of Blaine amendments has been widely recognized, including by three sitting Supreme Court justices. In Mitchell v. Helms (2000), a plurality opinion authored by Justice Clarence Thomas and joined by Justice Anthony Kennedy condemned the “shameful pedigree” of Blaine amendments, which “arose at a time of pervasive hostility to the Catholic Church,” when “it was an open secret that ‘sectarian’ was code for ‘Catholic.’” The plurality held that “this doctrine, born of bigotry, should be buried now.” In his Zelman dissent, Justice Stephen Breyer traced that history of anti-Catholic sentiment and observed that 19th-century Protestants sought to “preserve their domination” of public schooling. This historical context matters, as laws born of discriminatory intent are subject to strict scrutiny and thus unlikely to survive judicial review. (For more on this, see Erica Smith’s overview in the Federalist Society Review.)
Justice Stephen Breyer traced that history of anti-Catholic sentiment and observed that 19th-century Protestants sought to ‘preserve their domination’ of public schooling.
Despite Trinity Lutheran’s setbacks so far, there are good reasons to believe that the Supreme Court may prove more amenable to its argument — particularly with the addition of Justice Neil Gorsuch, who has shown strong deference to free exercise in past rulings. In Locke, the key precedent cited by both lower courts, the Court held that Washington’s constitutional provision was not a Blaine amendment (among other things, it was more narrowly drafted) and thus did not merit strict scrutiny. On the other hand, Trinity Lutheran makes a strong case that Missouri’s provision — enacted in 1875, the same year Blaine proposed his federal amendment — has a “credible connection” to that religious bigotry. An amicus brief by the Becket Fund also compellingly argues that the lower-court rulings are inconsistent with the principle of government neutrality toward religion that the Court has long recognized.
Trinity Lutheran could have profound implications for school choice. Opponents have long used Blaine-amendment language as a cudgel with which to attack voucher programs, tax-credit scholarships, and education-savings accounts. In the past two years alone, Blaine amendments have been used to challenge the constitutionality of school-choice programs in Alabama, Georgia, Oklahoma, and Colorado. A victory for Trinity Lutheran would fundamentally alter the landscape of school choice — at precisely the moment when choice has moved to the forefront of the education debate due to Secretary of Education Betsy DeVos and the choice-friendly Trump administration.
While there are long and sensible debates to be had over how best to design and deliver school choice, tomorrow’s case is more straightforward. After all, it’s hard to see how one squares Blaine-amendment prohibitions with any meaningful respect for religious liberty. Blaine amendments are expressly designed to burden free exercise by ensuring that states cannot help make religious schooling more affordable — a weight that falls most heavily on poor parents. This burden is especially troubling given that many public schools have unapologetically taken sides in some of today’s most sensitive debates.
The Supreme Court’s verdict in this playground tussle just may strike a powerful blow for school choice across the land.
— Frederick M. Hess is director of education-policy studies at the American Enterprise Institute. Grant Addison is a research assistant at AEI.