Yesterday, we talked Dougco. Because I’m a fan of loosely connected thematic writing, we’re going to do the same today in a more peripheral sense. Don’t worry, today’s post will include markedly less discussion about the nether regions of the male body.
Some of you may remember that there was a pretty important—and pretty disappointing—Colorado Supreme Court decision about Dougco’s local voucher program last June. The program was struck down under an incredibly broad interpretation of our state’s Blaine Amendment. The decision was so sweeping, in fact, that Justice Allison Eid had this to say about it in a dissenting opinion:
Today, the plurality interprets Article IX, Section 7 as prohibiting the expenditure of any state funds that might incidentally or indirectly benefit a religious school. This breathtakingly broad interpretation would invalidate not only the Choice Scholarship Program (“CSP”), but numerous other state programs that provide funds to students and their parents who in turn decide to use the funds to attend religious schools in Colorado. The plurality’s interpretation barring indirect funding is so broad that it would invalidate the use of public funds to build roads, bridges, and sidewalks adjacent to such schools, as the schools, in the words of the plurality, “rely on” state-paid infrastructure to operate their institutions.
Yikes! But things weren’t all bad. The Colorado Supreme Court’s decision to strike down the program opened a potential pathway to challenging discriminatory Blaine Amendments across the country before the United States Supreme Court (SCOTUS). And sure enough, Dougco appealed the decision, this time under the legal guidance of legal superstar and former U.S. Solicitor General Paul Clement.
Getting SCOTUS to grant a writ of certiorari, or “cert” for short, is tough. The high court receives about 10,000 applications for cert each year, of which it grants 75-80. In other words, SCOTUS takes up less than one percent of the cases it reviews each year. Obviously, this indicates that the court is a wee bit selective about the cases it takes. So, as compelling as Dougco’s case is, the odds of it reaching SCOTUS have always been long. We won’t know for sure whether SCOTUS will hear the case until sometime next month.
In the meantime, however, SCOTUS has decided to talk about Blaine Amendments by taking up a case out of Missouri. For those of us accustomed to talking about Blaine Amendments in the context of vouchers, scholarship tax credits, and education savings accounts, this case, Trinity Lutheran Church of Columbia Inc. v. Pauley, is a strange one.
Here’s the skinny: Missouri runs a program under which organizations can apply to the state for grants. That’s not unusual. But here’s the trick: these “grants” do not come in the form of money. They come in the form of scrap rubber. That rubber is used by organizations to replace hard playground surfaces with soft, bouncy pads—a significant improvement over the concrete my dad used to play on. If you’ve met my dad, you know what kind of impact (heh) repeatedly hitting one’s head against concrete playground surfaces can have.
Trinity Lutheran Church runs a preschool in Missouri. That preschool has a playground, and that playground is surfaced with gravel. Gravel is admittedly better to fall on than concrete, but it’s still not great. It is, after all, made of rocks. With this safety concern in mind, the church’s preschool applied to the Missouri Department of Natural Resources for scrap rubber that it could use to resurface the playground.
The department’s response? “No can do. You’re religious.” It then fervently pointed to the state’s Blaine Amendment and walked away.
The problem here is a nuanced one. The Playground Scrap Tire Surface Material Grant Program is supposed to operate on the basis of neutrality. But Trinity Lutheran asserts that the department actively discriminated against its preschool simply because it is a religious organization, thereby violating its First Amendment rights. As Alliance Defending Freedom Senior Counsel David Cortman, who represents Trinity Lutheran, puts it:
No state can define religious neutrality as treating religious organizations worse than everyone else. That isn’t neutrality; it’s a hostility to religion that violates the First Amendment. That’s the primary issue that the Supreme Court will address. In this case, the state should not have excluded this preschool from the recycled tire program simply because a church operates the school.
The attorneys general of ten other states—including Colorado’s Cynthia Coffman (go Cynthia!)—agree with Cortman. In a joint amicus brief, they argue:
…the Court has taught, in many cases, that when it comes to generally available, neutral programs, the U.S. Constitution, especially its Free Exercise and Equal Protection Clauses, requires faith-blindness almost as rigorously as it does color-blindness. But some courts have…approve[d] interpretations of state provisions that, as here, arguably push ‘no aid’ into the realm of discrimination against religion.
In addition to the discrimination issue, SCOTUS will likely have to grapple with the definition of “aid” to “sectarian” institutions. We are, after all, discussing shreds of recycled tires, not money. And resurfacing a playground is an awful lot different than buying hymnals. The brief continues:
[The 8th Circuit Court] split over whether…the Free Exercise Clause lets Missouri deny a church access to a generally available, neutral program that, even if the church participated, would have nothing to do with religion. Unlike refusing to fund clergy, refusing to protect children equally from injury because they play at a church has neither the sanction of history nor Mr. [James] Madison…
…Trinity Lutheran Church did not ask for new pews. It asked for ground-up tires to protect kids playing from injury. And in this respect it is similarly situated to every other preschool-daycare. The Missouri tire-recycling program, which aims at once to reduce landfills and injury to children, cannot serve any religious purpose…When the benefits sought have no tie to religion, withholding those benefits from churches alone seems arbitrary and unfair.
I think you all know where I stand on this issue. Whether you are religious or not, religious freedom is one of the most important manifestations of our First Amendment rights. And I happen to be rather attached to the Bill of Rights. I also happen to believe that parents have a right to choose where their children attend school, and that those children are equally worthy of fair treatment and protection no matter where their educational paths take them.
There’s no guarantee that a favorable ruling in Trinity Lutheran would be broad enough to cover other states’ Blaine Amendments, but I certainly hope for that outcome. Obviously, I also hope the court will pick up the Dougco voucher case. For now, though, I’m encouraged that SCOTUS wants to talk about the Blaine issue at all.