Law & the Courts

Bigotry against Religion Won’t Stop School Choice Forever

A police officer stands outside the U.S. Supreme Court building after the Court sided with Trinity Lutheran Church, (Reuters: Yuri Gripas)
Good-bye to Blaine amendments? A recent Supreme Court decision gives reason to hope.

In light of its recent decision in Trinity Lutheran v. Comer, the United States Supreme Court has vacated an anti-school-voucher judgment of the Colorado supreme court in 2015. Doyle v. Taxpayers for Public Education will be sent back to the Colorado court, which has a chance to put an end to a cruel and unusual jurisprudence that discriminated against religious schools and impeded school choice.

Both cases revolved around the notorious “Blaine amendments.” Thirty-nine state constitutions include them. Admitted into many state constitutions in the late 19th century, these amendments bar any government funding, often including school vouchers, that would “help support or sustain any school . . . controlled by any church or sectarian denomination.” But as the Supreme Court explained in Mitchell v. Helms (2000), “It was an open secret that ‘sectarian’ was code for ‘Catholic.’” Indeed, in his book Separation of Church and State, Columbia law professor Philip Hamburger explains that the amendments blocked Catholic attempts to secure school funding while leaving the supposedly nondenominational (but, for all practical purposes, Protestant) public schools untouched.

In Trinity Lutheran, the Court ruled that Missouri could not rely on the Blaine amendment in its state constitution to exclude religious schools from general funding for playground resurfacings. Because the program was neutral with regard to religion, the Court held that to exclude religious schools just because they are religious would be discriminatory.

However, this decision was construed narrowly, probably to secure the votes of Justices Stephen Breyer and Elena Kagan. A crucial footnote reads: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” But as Justices Neil Gorsuch and Clarence Thomas pointed out, the same principle of non-discrimination would apply to many other cases. Indeed, instructing Colorado’s supreme court to reconsider, in light of Trinity Lutheran, its ruling that a voucher program would violate the state constitution, the justices recognized just how big the implication of their own ruling could be on school choice. For now, though, they left that matter up to Colorado to decide.

In Doyle, the Colorado supreme court had relied on a Blaine amendment to strike down Douglas County’s voucher program, which provided 500 scholarships to parents for their children’s education. But now that excluding religious schools from a renovation program was found unconstitutional, why would excluding them from voucher programs be any different?

Voucher programs do not pass government funds directly to schools. Rather, they give money to parents, who can in turn use the voucher at private schools, secular and religious alike. Vouchers are not designed to support one religious group over another, or to support religious private schools over secular private schools; that is, voucher programs are neutral with regard to religion. It only follows, one hopes the Colorado court will realize, that excluding religious schools, as the Blaine amendments would mandate, is unconstitutional discrimination.

Governed by progressives since 1916, British Columbia directly funds religious schools of all denominations. What theocratic menace has that policy imposed upon this Canadian province?

On Tuesday, the Supreme Court also vacated a ruling by the New Mexico supreme court, which had struck down a textbook-lending program on grounds that it also transferred books to religious schools. In the post–Trinity Lutheran world, Blaine amendments will no doubt be challenged and the Supreme Court will eventually have to assess their constitutionality. The bottom line is that the prevailing petty antagonism toward religious schools will no longer get a free pass.

Pettiness and fanaticism — secular fanaticism, that is — must be recognized as the key factors behind challenges to programs like New Mexico’s. Why else, after all, would one go to such lengths to stop kids from getting desperately needed textbooks if they attend a Catholic or a Jewish school? Such programs harm nobody, and yet the American Civil Liberties Union and other secularist organizations insist that they be overturned from coast to coast.

These fanatics scour the nation to find instances of government helping religious schools, seeking of course to stop it in its tracks. “It violates the separation of church and state!” they howl, as if a program that renovated playgrounds or provided textbooks or vouchers to secular and religious schools alike would somehow tear apart the fabric of our country. In their view, apparently, only discriminating against the religious and keeping textbooks and safe playgrounds from their children will protect our democracy from the ever-grasping tentacles of religion.

Groups such as the ACLU should be asked just what it is that they fear will happen if some Colorado parents use vouchers to pay for Jewish education, or if some of Missouri’s new playgrounds happen to be located at Christian schools. What plague will strike our political community?

One could go further and point them to British Columbia. Governed exclusively by liberals and socialists since 1916, that Canadian province directly funds religious schools of all denominations. What theocratic menace has this policy imposed upon progressive British Columbia? None, of course, as they surely know.

But then, bigotry against religion is as irrational as any other bigotry. Pray that the Supreme Court finally understands this.

Correction: This article originally stated that Justice Ginsburg joined the majority. In fact, Ginsburg dissented while Justice Kagan joined the majority.

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Elliot Kaufman — Elliot Kaufman is an editorial intern at National Review. He studies political theory and history at Stanford University. His writing has previously appeared in the Wall Street Journal, the Stanford ...

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