SCOTUS delivers win for religious liberty but punts on school choice

REUTERS/Yuri Gripas

On Monday, the Supreme Court handed down its long-awaited decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, delivering a potent victory for religious liberty — but one with murkier implications for school choice than many had anticipated. In a 7–2 ruling, the Court held that Missouri violated the First Amendment’s free-exercise clause when it prohibited a church from receiving public funds for playground improvement “solely because of their religious character.”

The dispute dates to 2012, when Trinity Lutheran Church of Columbia, Mo., was excluded from a state grant competition created to assist nonprofits in the installation of rubber playground surfaces. The Missouri Department of Natural Resources rejected the church’s application, despite having determined that it deserved funding on the merits. Missouri argued it had to reject Trinity Lutheran’s bid because its state constitution bars distributing public funds to religious organizations.

In its ruling, the Court majority held that “the Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.” The verdict’s import, however, is clear only when the assemblage of that 7–2 majority comes into focus. Chief Justice John Roberts authored the majority opinion, which was joined in full by Justices Kennedy, Alito, and Kagan. Those four were joined by Justices Thomas and Gorsuch in all but one crucial footnote, while Justice Breyer issued a concurring opinion. Only Justices Ginsburg and Sotomayor dissented.

A police officer stands outside the U.S. Supreme Court building after the Court sided with Trinity Lutheran Church, which objected to being denied public money in Missouri, in Washington, U.S., June 26, 2017. REUTERS/Yuri Gripas

Trinity Lutheran had been avidly awaited by school-choice advocates. As we noted on NRO back in April, the issue is Missouri’s so-called Blaine amendment — a provision added to many state constitutions in the late 1800s as part of an anti-Catholic crusade intended to stymie the nation’s then-fledgling parochial-school system. Today, some 39 states still have some version of a Blaine amendment in their constitution. These are routinely used by teacher unions and their allies to attack school-choice policies that permit students to use public funds to attend religious schools. In the past two years alone, for example, Blaine amendments have been used to challenge the constitutionality of school-choice programs in Alabama, Georgia, Oklahoma, and Colorado.

While Trinity Lutheran could have yielded a sweeping decision, the Court’s majority shied away from anything so decisive. Instead, in holding that Missouri’s “policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,” the justices chose to rule narrowly. The majority pointed out that the playground was publicly accessible, and not for use solely by students or members of Trinity Lutheran. Breyer’s concurrence cautioned that the decision ought not be broadly read.

Roberts’ narrow language left unsettled whether states are still free to discriminate against religious schools when it comes to publicly available benefits that aren’t related to playground surfaces. This question — crucial for school choice efforts going forward — rests on the significance of that aforementioned footnote. Footnote 3 of Roberts’ opinion 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.” Though concurring that this ruling “need not go further” than the public benefit provided by the playground grant program specifically, Justice Breyer opted not to join in the salient footnote. As Justices Thomas and Gorsuch also refused to concur with footnote 3, it was endorsed by just four justices — Roberts, Kagan, Alito, and Kennedy — and thus does not register as “the opinion of the Court.”

Trinity Lutheran strengthens the protections accorded to free exercise, but punts on the question of whether states can prohibit religious schools from participating in publicly funded school-choice programs. Deciphering the import of that mixed message requires discerning what Roberts sought to accomplish with this ruling. Did he seek a narrow decision by design, hoping to avoid a controversial free-exercise ruling that would invalidate century-old clauses in dozens of state constitutions? Or did he seek a precedent to provide firmer footing for a more dramatic ruling in a future term?

The answer, and the significance of footnote 3, will matter much for efforts to expand tax credits, vouchers, and education savings accounts. We may not have to wait too long for more clarity. Just yesterday, the Court vacated state-supreme-court rulings in Colorado and New Mexico, in cases in which the courts had invoked Blaine amendment language to rule against including religious options in private school-choice programs. The Supreme Court directed the respective state courts to revisit their rulings in light of Trinity Lutheran. Given the narrowness of the High Court’s decision, of course, it’s not clear whether those courts will feel obliged to revise their rulings. In any event, these developments mean that the Supreme Court may be issuing a more clear-cut determination sooner rather than later.

As Justice Gorsuch wrote in his rejoinder to the pivotal footnote, “The general principles here do not permit discrimination against religious exercise — whether on the playground or anywhere else.” Court watchers had thought there might be five justices, or more, willing to embrace that principle this time around. But this week’s ruling stops at the playground’s edge.



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Frederick M. Hess

Frederick M. Hess

Direct Ed Policy Studies at AEI. Teach a bit at Rice, UPenn, Harvard. Author of books like Cage-Busting Leadership and Spinning Wheels. Pen Ed Week's RHSU blog.