A case challenging a Blaine Amendment in Missouri’s state constitution will go before the U.S. Supreme Court this year, the Court announced last week, to decide if the state can rely on the discriminatory, historically anti-Catholic, constitutional provision in its denial of a grant to a Christian preschool meant to aid in resurfacing the playground with recycled tires.
“No state can define religious neutrality as treating religious organizations worse than everyone else,” said Alliance Defending Freedom (ADF) Senior Counsel David Cortman in a statement about the Court’s decision to hear the case, Trinity Lutheran Church of Columbia v. Pauley, during its January 15 conference.
“That isn’t neutrality; it’s a hostility to religion that violates the First Amendment,” he continued. “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.”
ADF is representing Trinity Lutheran Church Learning Center in the case. In 2012, Trinity Lutheran applied to Missouri’s Playground Scrap Tire Surface Material Grant Program, which provided funds to schools to resurface playgrounds with the recycled tires, making them safer for children.
Although Trinity Lutheran’s rankings in the application process were high enough to earn the grant, the Missouri Department of Natural Resources denied funding to the preschool because of a section of the state constitution prohibiting government aid to religious institutions, known as a Blaine Amendment.
Blaine Amendments, named for former Speaker of the House and U.S. Secretary of State James G. Blaine, are provisions currently found in 37 state constitutions prohibiting the use of taxpayer funds at “sectarian” schools. After Blaine’s failed attempt to amend the U.S. Constitution with the proposal in 1875, versions of the amendment were “added to state constitutions in order to enforce the nativist bigotry of the day” against Catholics, according to The Beckett Fund for Religious Liberty.
State officials cited the Blaine Amendment in Article 1, Section 7 of the Missouri constitution:
Public aid for religious purposes — preferences and discriminations on religious grounds. — That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.
While the case focuses on a Lutheran preschool, Eric Rassbach, an attorney with The Becket Fund, which filed an amicus brief in the case, told The Cardinal Newman Society that the Supreme Court’s decision “absolutely could have an impact for Catholic schools.”
Rassbach explained that the Missouri state government’s argument could be implemented to mean “that religious entities would not be able to contract with the state. It would mean that religious entities would get no grants, even for completely secular purposes like playground safety.”
If the Supreme Court upheld the state’s argument, “It would be open season on Catholic institutions,” he said.
ADF Senior Legal Counsel Jordan Lorence argued that the state of Missouri’s reasoning was tantamount to saying, “We’re not going to allow the Jewish synagogue to hook up to the sewer system,” or, “We’ll send the police to investigate any burglary unless it’s at the Buddhist monastery.”
“These are just normal, regular governmental services that are available to everybody, and they single out the religious users and say, ‘You cannot participate because of this really extreme and abstract notion of separation of church and state that’s in our constitution,’” he said. “And we’re hoping that the United States Supreme Court will rule in this case that you can’t have such an extreme regime of benefit program under the First Amendment.”
ADF argued in their petition to the Court: “No public benefit could be further removed from the state’s antiestablishment concerns than a grant for safe rubber playground surfaces that serve no religious function or purpose.”
“Children’s safety is just as important on church daycare playgrounds as it is on other daycare playgrounds,” said ADF Senior Counsel Erik Stanley. “Missouri and every state should understand that the U.S. Constitution prohibits religious hostility, which is what Missouri exhibited when it denied Trinity Lutheran’s scrap tire grant application. This case has huge implications for state constitutional provisions across the nation that treat religious Americans and organizations as inferiors solely because of their religious identity.”
Also at issue is the 8th Circuit U.S. Court of Appeals decision last year denying relief for Trinity Lutheran by invoking the Supreme Court’s 2004 decision in Locke v. Davey. In the Locke decision, the Supreme Court held that the state of Washington could deny scholarship funds for the purpose of pursing a degree in devotional theology.
“There is a gap in the constitutional protections between the free exercise of religion and the federal establishment clause,” said Lorence. “There’s some no man’s land legally where a state could, the Supreme Court said in Locke v. Davey back in 2004, single out religious groups and exclude them. … You could study religion but couldn’t study to be a pastor.”
Lorance called the 8th Circuit’s decision “Locke v. Davey gone wild,” and said the Supreme Court’s decision to hear the Trinity Lutheran case is “a good sign” they’re going to rein in the decision.
The Becket Fund’s Rassbach agreed that the Supreme Court is likely to grant a favorable ruling in the Trinity Lutheran case. “I think they’re going to say that the First Amendment and the Fourteenth Amendment don’t allow governments, federal or state, to discriminate against religious institutions merely because they’re religious.”
As the Newman Society previously reported, a challenge to Colorado’s Blaine Amendment is currently awaiting review by the U.S. Supreme Court. In that case, petitioners are challenging a Colorado Supreme Court ruling that blocked scholarship funds to hundreds of families in Douglas County, Colo., who were supposed to be able to use the scholarship to attend a private schools of their choice, regardless of a school’s religious identity. The decision to hear that case will be considered during the Court’s February 19 conference.
The Newman Society also reported last month on families in Montana being denied scholarship funds through a new state school choice program for wanting to send students to private religious schools. The state lawmaker who drafted the legislation for the new program said it was “carefully crafted” to allow funding of private religious schools, but the state, relying on the Blaine Amendment language in the state constitution, will not allow the funds to be used at religious schools.