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Symposium: Trinity Lutheran and Zelman – Saved by footnote 3 or a dream come true for voucher advocates?

Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law & Religion at Michigan State University College of Law.

On its face, Trinity Lutheran Church v. Comer does not appear to have anything to do with school vouchers. After all, the primary issue in the case is whether a state can deny, pursuant to its state constitution, a grant to a church school under a program that awards funds to qualifying entities that use recycled material to resurface playgrounds. Yet, at its core, the Trinity Lutheran decision is about requiring states to include religious entities in public benefit programs generally open to other entities. Despite a suggestion to the contrary in the dissenting opinion, Trinity Lutheran may very well open the door to requiring state and local governments to include religious entities in voucher programs.

The Trinity Lutheran decision explains that:

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. … The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.

In other words, the holding in Trinity Lutheran reflects the notion that once the government opens up a “public benefit,” it cannot deny that benefit to a religious entity based on that entities’ religious nature. Moreover, a state cannot rely on its own state constitution – or on any other state interest – to deny religious entities access to a public benefit, because according to the court any such denial violates the free exercise clause of the U.S. Constitution. If all “public benefits” that might qualify for this protection were as innocuous as playground resurfacing, Trinity Lutheran would seem an eminently reasonable decision. After all, denying access to funding for a primarily secular benefit simply because of the religious status of the entity seeking funding would smack of discrimination against religious entities and would seem an obvious violation of the free exercise clause. Yet, where is the line to be drawn between public benefits that qualify for such protection and those that do not?

The answer to this question is of colossal importance because it raises the specter of an earlier Supreme Court decision, Zelman v. Simmons-Harris. That decision held that a school-voucher program did not violate the establishment clause even when 96.4 percent of voucher recipients under that program went to religious schools that were free to proselytize. I have written elsewhere about the many problems with the Zelman opinion, from its mischaracterization of precedent to its use of an illusory concept of formal neutrality.

Most importantly, after Zelman, parents living in states or school districts that provide vouchers for private school attendance, but who do not want their children to be proselytized, may have few options. In many parts of the country most private schools, especially those that can afford to take students under voucher programs, are religious and often highly subsidized by their parent churches. The amount included in voucher subsidies often precludes smaller religious schools and nonreligious schools from participating.

In Zelman, the court upheld the program despite the fact that more than 96 percent of voucher students attended religious schools of only one or two denominations, ironically because that attendance was deemed to be based on “true private choice.” Meanwhile, parents who had religious objections to sending their kids to these religious schools could do little, as funds were sucked out of their children’s already failing schools, leaving their children further behind. Their only hope would be to win a lottery for spots at a magnet school (assuming their child qualified) or for one of the few decent charter schools available. The court’s attempt to whitewash the numbers by including these public options was a great illusion, but in the end many parents were stuck with the choice of sending their children to failing public schools that would now be losing more funds and students or sending their children to religious schools of different faiths that were free to proselytize directly or by long-term exposure, in some cases risking the children’s eternal souls from the parents’ faith perspective or increasing the odds that the children will deny their faith (or lack of faith).

Still, a question left open in Zelman was whether government must fund religious entities when it opens up a generally available funding program. Until Trinity Lutheran the answer was unclear. It now seems that Trinity Lutheran may be used to expand the rule in Zelman from a “may” to a “must,” so that state and local governments will now have to include religious schools in voucher programs, or other programs, for fear of violating the free exercise clause.

There are two possible bulwarks against this result in Trinity Lutheran, neither of which gives me much confidence that the opinion will be limited to exclude voucher programs from its reach. First, is footnote 3 in the “majority” opinion.

Footnote 3 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.

Footnote 3 was the only part of the opinion not joined by Justices Neil Gorsuch and Clarence Thomas, and therefore it only commanded a plurality of justices. It does seem, however, that Justice Stephen Breyer, who concurred only in the judgment, and Justices Sonia Sotomayor and Ruth Bader Ginsburg, would agree with the potential limiting principle in footnote 3.

On its face, footnote 3, combined with some other statements in the majority opinion, seems to limit the ruling to programs that have no direct religious content. If that were the case, there is at least a chance that Trinity Lutheran could not be used to force state and local governments to include religious schools in every program, including those that may lead to government funds being used to send students to schools that may proselytize them, even if through the supposed private choice of parents. Yet, how much footnote 3 limits the broader holding in Trinity Lutheran is unclear, especially given some of the strong language used in the majority opinion suggesting that excluding religious entities from “public benefit” programs based on the fact that they are religious entities is inherently discriminatory.

The other possible bulwark arises from the way in which Justice Sotomayor’s dissenting opinion characterizes the majority opinion. She suggests that the majority opinion applies only to direct-aid cases and therefore would not apply to cases involving indirect aid programs such as the one in Zelman. In fact, in footnote 2 of the dissent, she makes this explicit by mentioning Zelman itself.

Perhaps I am missing something – and I hope I am – because I am writing this the day the Trinity Lutheran opinion was handed down, but having read the opinion several times now, I do not see the direct-aid limitation as an inherent component of the decision. The decision appears to apply to “public benefit” programs regardless of whether they are direct or indirect aid programs. It doesn’t seem to matter whether the church school argues it is excluded from a program that involves lump-sum grants or one that relies on the choices of parents, so long as it is excluded because it is a church school. I hope Justice Sotomayor is correct and that my fears of a Zelman requirement, rather than a Zelman option, are misguided.

Quite honestly, if it were not for Zelman I would welcome the decision in Trinity Lutheran. The idea that government should not be allowed to discriminate against religious entities’ access to aid that has no religious content, such as playground safety, is welcome. Yet in the world wrought by Zelman, Trinity Lutheran seems far less innocuous. After Zelman students who do not want to be proselytized and parents who do not want to sacrifice their children’s eternal souls for a voucher to go to a religious school that may try to convert them away from their own faith (or nonfaith) may be forced to accept substandard education in schools that have been further drained of funds and students due to a voucher program.

One final note. Nothing in the court’s opinion suggests that denying a religious school funding under a no-funding provision like the one in the Michigan Constitution, which prevents funding to any private school whether religious or not, would be unconstitutional. In fact, such provisions do exactly what the court asks. They avoid denying funding along religious lines, and only deny funding based on a distinction between public and private entities regardless of the religious or non-religious nature of those entities.

Recommended Citation: Frank Ravitch, Symposium: Trinity Lutheran and Zelman – Saved by footnote 3 or a dream come true for voucher advocates?, SCOTUSblog (Jun. 26, 2017, 10:59 PM),