When the Rubber Hits the Road to Unobstructed School Choice

Published May 15, 2017

Obviously, the Constitution does not obligate a state to help nonprofits repave their playgrounds with recycled tires in the interest of making them safer for kids. However, if a state offers such a grant program, do its officials violate the Constitution if they reject a church preschool’s application due to the state’s longstanding ban on all aid, direct or indirect, to religiously affiliated organizations?

That is the crux of the issue in Trinity Lutheran Church of Columbia v. Comer, a case from Missouri that on April 19 was brought before the U.S. Supreme Court, which had just returned to full strength with the addition of Justice Neil Gorsuch. As a federal appellate court jurist, Gorsuch was a staunch defender of religious freedom as protected by the First Amendment.

At stake is much more than whether the rubber meets a currently gravel-surfaced playground. If the court majority rules for Trinity Church, the verdict could deliver a death blow to vestiges of 19th-century anti-Catholic bigotry, the so-called Blaine Amendments, which continue to stain the constitutions of more than two-thirds of the states. Today, those anti-sectarian-schools provisions are about the last bullet in the gun belts of those who wish to terminate scholarship programs permitting families to exercise their preference for religious schools, whether affiliated with Catholicism or other faiths, such as the teachers unions and ACLU.

Having accepted Trinity for review on January 15, 2016, the Supreme Court normally would have heard oral arguments during April 2016. However, because of the death of Justice Antonin Scalia, experts at the authoritative SCOTUSblog (the official blog of the Supreme Court) believe the court deliberately put a hold on Trinity, given its importance, pending the nomination and confirmation of a justice who would break a 4–4 tie, one way or the other. With Gorsuch on board, the SCOTUS analysts anticipate a 5–4 vote for Trinity preschool when the high court hands down its opinion, probably in late June or early July.

That was before the April 19 oral arguments that yielded a huge surprise largely missed by the mainstream media but reported fully by the SCOTUSblog and verifiable in transcripts of the proceedings. As Supreme Court writer Amy Howe observed, “After roughly an hour of oral argument, the state seems to have only two certain votes [supporting a wall of opposition to all aid flowing to faith-based institutions] — those of Justices Ruth Bader Ginsburg and Sonia Sotomayor.”

Two members of the court’s liberal faction — Justices Stephen Breyer and Elena Kagan — joined conservative Samuel Alito in thoroughly skewering the state’s rationales for rejecting out of hand an application that ranked fifth in quality among 44 submitted. Noting that the playground at issue is open to everyone, Kagan asserted that barring just one kind of applicant — the religiously oriented one — imposes “a clear burden on a constitutional right.”

Missouri faces a steep hurdle to justify such discrimination. Meanwhile, it was Breyer who led the state’s lawyer, James Layton, into a snare of law and logic that came to dominate the discussion.

After eliciting from Layton an acknowledgement that the Constitution does not permit states to deny fire, police, and public-health protection to churches, Breyer asked how can it be, then, that Missouri can exclude aid for a new playground surface that could “[help] children not fall in the playground, cut their knees, get tetanus, break a leg, etc.? What’s the difference?”

The state tried to draw a distinction between permissibly excluding religious groups from selective programs while allowing them to partake in general benefits, but Gorsuch seemed to speak for a clear majority in observing how mind-numbingly hard it would be to draw such a line.

After Sotomayor hailed a long history of states not wanting to fund churches and asserting that they should be free to continue that stance, Alito questioned any notion that depriving Trinity’s playground of a safe surface was part of some noble historical tradition. Isn’t it, in fact, he asked, traceable to “anti-Catholic bigotry”? Zing! As long ago as 2000, in Mitchell v. Helms, Justice Clarence Thomas, writing for a four-member plurality, declared: “[Blaine amendments], born of bigotry, should be buried now.”

So, is the Supreme Court, contrary to months of tie-breaker speculation, going to vote 6–3 or even 7–2 in favor of Trinity preschool’s enjoying First Amendment protection against religious discrimination? Predicting the court’s decisions on the basis of questions justices ask of litigants’ lawyers can be risky business. Sometimes, a justice will play devil’s advocate in order to drill deeper into assertions made in legal briefs. Moreover, the court sometimes settles cases on narrow points, leaving larger questions for another day.

It seems unlikely, but if the court should uphold a state’s banning aid to a church-run preschool, such a verdict would not necessarily knock down school-choice programs that aid individual parents and allow religious schools to be among their options. The court subsequently could settle that issue by granting review of a 2015 ruling of the Colorado Supreme Court that held Douglas County’s school choice vouchers violated that state’s Blaine amendment, Doyle v. Taxpayers for Public Education.

It does seem increasingly likely the Supreme Court is on the verge of protecting Americans’ free exercise of religion as part of its decision-making process as to where best its children can play and learn. Such a landmark decision would allow states to expand school choice greatly through such innovations as education savings accounts without fear of interminable litigation.

 [Originally Published at American Spectator