In an order issued this morning, June 27, 2017, the U.S. Supreme Court agreed to consider four cases, including three private school voucher cases and one textbook case, which it sent back to the lower courts "for further consideration in light of Trinity Lutheran Church of Columbia, Inc., v. Comer."

In Trinity, the Court said that officials in the state of Missouri violated the religious-freedom rights of a church by denying it a taxpayer-funded grant to resurface the playground at its preschool. The Court held that since the funding is generally available to a wide array of community organizations, religious entities could not be excluded.

Following yesterday's decision in Trinity, some advocates of the mutually beneficial wall between church and state took some solace in the third footnote in Chief Justice John Robert's opinion which appeared to limit the scope of the decision to "playground resurfacing." Footnote 3 stated, "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."

This reliance on footnote 3 was not naive. In fact, it took on such significance that Justices Gorsuch and Thomas wrote a concurring opinion just to say that they agreed with everything in the majority opinion BUT footnote 3.  Wrote Justice Gorsuch:

"Second and for similar reasons, I am unable to join the footnoted observation, ante, at 14, n. 3, that '[t]his case involves express discrimination based on religious identity with respect to playground resurfacing.' Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only 'playground resurfacing' cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion, as some family legal terms  for example: How your spouses bankruptcy affects you. This should´t really worry anybody if they know how to file bankruptcy chapter 7. Such a reading would be unreasonable for our cases are 'governed by general principles, rather than ad hoc improvisations.' Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 25 (2004) (Rehnquist, C. J., concurring in judgment). And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else."

Well, it looks like Justice Gorsuch's concerns were misplaced because as of today, footnote 3 the Supreme Court has asked lower courts to examine voucher issues in light of the Trinity decision. Footnote 3 is just a footnote and the new string of cases unleashed by Trinity could rewrite Establishment Clause jurisprudence, putting churches and religious schools in line for government funding.

If the school voucher cases result in court orders that states must fund private parochial schools, regulations and limitations on these institutions will inevitably follow.


The Four Cases

In DOYLE, FLORENCE, ET AL. V. TAXPAYERS FOR PUBLIC ED., ET AL. the question presented is:
"Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally-available and religiously neutral student aid program simply because the program affords students the choice of attending religious schools?"
In  DOUGLAS CTY. SCH. DIST., ET AL. V. TAXPAYERS FOR PUBLIC ED., ET AL. the question presented is a broadside attack on Colorado's Blaine Amendment in a voucher-type case:
"Can Colorado’s Blaine Amendment, which the unrebutted record plainly demonstrates was born of religious bigotry, be used to force state and local governments to discriminate against religious institutions without violating the Religion Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment? "
In COLORADO ST. BD. OF ED., ET AL. V. TAXPAYERS FOR PUBLIC ED., ET AL. the third voucher case, the question presented is:
"Does requiring a State to categorically deny otherwise neutral and generally available public aid on the basis of religion violate the United States Constitution?"
In NEW MEXICO ASSN. NONPUBLIC SCH. V. MOSES, CATHY, ET AL., a textbook case, the question presented is:
"Whether applying a Blaine Amendment to exclude religious organizations from a state textbook lending program violates the First and Fourteenth Amendments."




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