The Supreme Court will decide whether states can provide financial aid to religious institutions

April 16, 2017 | By MERIEM L. HUBBARD

In 1875, Congressman James G. Blaine proposed an amendment to the U.S. Constitution that would have prohibited state governments from funding religious institutions, including religious schools.  Although the proposal failed to gather enough votes in Congress, a majority of states added Blaine Amendments to their constitutions, most of which were adopted during the last quarter of the 19th century.  On Wednesday, the Supreme Court will hear argument in Trinity Lutheran Church of Columbia, Inc., v. Sara Parker Pauley, which challenges the constitutionality of Blaine Amendments under the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

Trinity Lutheran Church operates a daycare that includes a playground used by both students and members of the surrounding community. Trinity applied for a grant offered to nonprofit organizations by the State of Missouri, which would have allowed Trinity to replace the rock surface of the playground with a safer rubber surface made from recycled tires. Trinity submitted the fifth best plan for the use of the rubber surfacing material, but the church was not among the fourteen organizations to receive a grant.  Why?  Because the Missouri State Constitution has a Blaine Amendment that does not allow public money to be spent “directly or indirectly, in aid of any church, sect or denomination of religion.”

It is not surprising that the Supreme Court agreed to review this case, because the facts are not particularly controversial.  Public funds used for materials to make a safer playground for young children is more about safety than religion, even if the playground is on church property.  For that reason, this case provides a good vehicle for the Court to issue a fairly narrow ruling that would allow states to provide aid to religious institutions if the aid has nothing to do with promoting religious beliefs or practices. The use of public funds for vouchers to attend religious schools would present more controversial facts, but proponents of school choice are hoping the Court’s decision will be sufficiently broad to allow voucher programs.  Currently, Blaine Amendments prevent the use of public funds at private schools operated by religious organizations.

PLF filed an amicus brief in support of Trinity Lutheran Church, arguing that the exclusion of religious entities from neutral and secular programs amounts to unequal treatment under the Equal Protection Clause. Religious discrimination in the United States has long been intertwined with national origin and race. Thus, the treatment of religious discrimination should be subject to the same standard of heightened scrutiny as that applied to racial discrimination. Under this test, the State must prove more than the existence of a rational basis for denying Trinity’s application: it must prove that it acted to further a compelling state interest and that the denial was designed to further that interest.