The Douglas County Board of Education’s Choice Scholarship Program offers tuition scholarships to eligible students who attend qualifying religious or non-religious private schools. The Colorado Supreme Court struck down the program as violating the Colorado constitution’s prohibition of any state support of religion. School choice proponents petitioned the U.S. Supreme Court to review the case. After the Supreme Court invalidated a Missouri funding program that discriminated against religious institutions as violating the First Amendment, the Court granted the Colorado petition and remanded it to the state courts for reconsideration in light of the Missouri decision.
In 2015, the Colorado Supreme Court held that Douglas County’s Choice Scholarship Program violates Article IX, section 7, of its state’s constitution. This provision broadly prohibits state support of religion. In its analysis the Colorado Supreme Court ignored the discriminatory history of Article IX, section 7. Amid a sea of anti-Catholic resentment in the 1870s, Senator James Blaine attempted to amend the U.S. Constitution to prohibit any spending on religious schools. At the time, it was understood that this constitutional amendment would have only barred states and localities from supporting Catholic institutions; Protestant institutions would be unaffected by this amendment. Though Senator Blaine was unsuccessful at the federal level, many states legislatures shared his anti-Catholic sentiment and incorporated Blaine Amendments into their state constitutions. Article IX, section 7 is one of these Blaine Amendments.
The First Amendment and Equal Protection Clauses of the United States Constitution prohibit states from discriminating between religion and non-religion. Though a state can put reasonable limits on how the scholarships are used, it may not discriminate against religious institutions. So while the state may decline to fund devotional training, it may not target religion for different treatment. Colorado’s anti-religion clause is unconstitutional.
PLF filed an amicus brief supporting school choice proponents’ petition to the Supreme Court to review the Colorado Supreme Court decision. PLF noted that the effects of the Blaine Amendment are especially dismaying when applied to school choice programs that benefit students and society. The Supreme Court granted the petition and held it until it decided Trinity Lutheran Church v. Comer. In that case, the Court ruled that the federal constitution allows generally-available and religiously-neutral government aid programs to provide public money to religious institutions. It then remanded the Colorado case for reconsideration. The Colorado Supreme Court sent the case back to the lower state court.