Alice O’Brien is general counsel for the National Education Association. She filed an amicus brief in support of the state in Trinity Lutheran v. Comer.
Those following this symposium know that the Trinity Lutheran v. Comer dispute over a playground-resurfacing grant was viewed by many as a stalking horse for the Supreme Court to decide the extent to which state constitutional provisions against religious aid limit private-school voucher programs. After the Supreme Court held in 2002 in Zelman v. Simmons-Harris that the federal establishment clause did not prohibit the states from using taxpayer dollars to pay for religious education in private schools, the religion clauses of state constitutions have remained a barrier to such voucher programs. Fully three-quarters of all state constitutions contain “no-aid” provisions like Article I, Section 7, of the Missouri Constitution, on which that state relied in declining to fund the Trinity Lutheran Church’s playground. And many other states have constitutional provisions prohibiting the “compelled support” of religious institutions – including involuntary support through the payment of taxes.
At least since the 1970s, state courts have been increasingly willing to recognize that their own state constitutions contain protections for individual liberties that should be construed independently of parallel provisions of the federal Bill of Rights. In particular, most state courts have interpreted their state constitutional guarantees of freedom of conscience and separation of church and state independently of the federal First Amendment. Doing so is particularly apt given that these state religion clauses – unlike, say, state constitutional equivalents of the Fourth and Fifth Amendment guarantees – typically differ considerably from the First Amendment in both text and history. Nearly all of them were written at a time when the First Amendment was not understood to apply to the states, so it was these state constitutional provisions that demarcated the extent to which state authorities could use public funds to support religious activity.
Both before and after Zelman, state courts have struck down private-school voucher programs under such provisions. Examples of such cases include Chittenden Town Sch. Dist. v. Department of Educ., 738 A.2d 539 (Vt. 1999); Bush v. Holmes, 886 So. 2d 340 (Fla. Dist. Ct. App. 2004), aff’d on other grounds, 919 So. 2d 392 (Fla. 2006); and Cain v. Horne, 202 P.3d 1178 (Ariz. 2009). Indeed, in a case that the Supreme Court sent back for reconsideration yesterday in light of Trinity Lutheran, Taxpayers for Pub. Educ. v. Douglas Cty. Sch. Dist., the Colorado Supreme Court invalidated a school district’s voucher program, with the plurality relying on the Colorado constitution’s no-aid clause.
Unsurprisingly, those who seek to divert public-education funds to private-school vouchers, most of which fund pervasively sectarian schools, have long sought to nullify these state constitutional barriers by arguing that the federal free exercise clause – and perhaps the equal protection clause as well – prohibits states from enforcing their state constitutional guarantees of religious liberty to the extent they impose more rigorous restrictions on public funding of religion than does the federal Constitution.
The first run before the Supreme Court along these lines failed, in 2004, on a 7-2 vote in Locke v. Davey, with the court (per Chief Justice William Rehnquist) holding that, as to the funding of religious activity, a state may “draw a more stringent line than that drawn by the United States Constitution.” Under the First Amendment there was “room for play in the joints” – so that the states were not prohibited by the free exercise clause from refusing, pursuant to their own constitutions, to fund religion in ways that would have been permitted under the establishment clause. In particular, the court rejected the argument – grounded in the 1993 decision Church of Lukumi Babalu Aye, Inc. v. City of Hialeah – that a refusal to fund religious activity was “presumptively unconstitutional because it is not facially neutral with respect to religion.” Applying that “facial neutrality” test when “[t]he State has merely chosen not to fund a distinct category of instruction” “would extend the Lukumi line of cases well beyond not only their facts but their reasoning.”
Ever since, voucher proponents have attempted to undermine Locke by arguing (generally unsuccessfully) that it should be limited to its specific facts – a state’s refusal to allow a student preparing for the ministry to participate in an otherwise generally applicable college scholarship program – and they seized on the Missouri playground case as another chance to ask the court to do so. On the theory that the court might explain, in the course of deciding in favor of a better playground for the church, that all state prohibitions against religious aid must yield to the federal Constitution’s protections for religious expression, the church and their amici argued that Locke should be limited to its facts, that the court should find the Missouri no-aid provision illegitimate on the theory that it was somehow tarred by a separate and subsequent debate over the federal Blaine amendment, and that the court should even go so far as to hold that states may not constitutionally limit voucher programs to non-sectarian uses.
But the court did none of that. Over the objection of Justices Neil Gorsuch and Clarence Thomas, Chief Justice John Roberts limited the sweep of the court’s opinion to the specific facts before it. Apparently viewing eligibility to participate in Missouri’s playground program as akin to eligibility for generally available public services like police and fire protection, the court held that Trinity Lutheran Church was being excluded from participation solely because of its status as a church, so that it was “put to the choice between being a church and receiving a government benefit.”
One might well question, as did Justice Sonia Sotomayor, whether this is the appropriate way to think about paying public funds to religious institutions. But the critical point here is that the court’s reasoning in Trinity Lutheran can have no applicability to voucher programs, in which the government typically provides to parents funds that they can use to pay tuition for their children to attend the private school of their choice – and in which the overwhelming majority of the private-school options available to parents typically are schools operated by churches and other religious institutions that have as a central purpose the inculcation of religious belief. A state constitutional provision that prohibits the use of public funds for such a purpose disqualifies no one from receiving a public benefit on the basis of his or her status. As in Locke, the disqualification from receipt of public funds is not “because of who [the recipient] was”; rather, it is “because of what [the recipient] proposed to do” with those funds.
And if there were any doubt about the limited sweep of the Trinity Lutheran ruling, the court made it explicit: “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.” In short, after Trinity Lutheran as before, the religious liberty clauses of state constitutions remain as independent bulwarks against the use of public funds to aid churches in teaching religion.
One other point bears noting. As they have done for years, voucher proponents in the Trinity Lutheran case sought to undermine the fundamental legitimacy of the no-aid clauses found in the vast majority of state constitutions by asserting that these “Blaine amendments” – so called, pejoratively, after a failed federal constitutional amendment of 1876 – were simply the product of anti-Catholic bigotry. This campaign rests on historical analysis that is at best shoddy and at worst tendentious. As more detached scholars have shown, the 19th century debate over the “school question” involved multiple and complex historical threads going back well beyond the rise of nativism and involving fundamental questions over the nature and funding of our nation’s common schools. What came out of that debate cannot simplistically be ascribed to “bigotry.” See, e.g., Noah Feldman, Non-Sectarianism Reconsidered, 18 J.L. & Pol. 65 (2002). In any event, the court in Trinity Lutheran gave this chorus of pseudo-historians precisely the attention it deserved – none. Their attempt to distort and discredit an important part of our nation’s constitutional heritage has nothing to commend it.
In our increasingly hyper-partisan and divided society, our common schools remain one of our most powerful institutions for creating a common understanding among each of us, of each other and our democratic society. By declining the invitation of school-voucher proponents to use Trinity Lutheran to remove a constitutional barrier to the diversion of funding from our public schools to vouchers, the court left the debate over voucher programs where it should be – namely, with the states, to be resolved based on their state constitutional provisions.