Advocates for private-school vouchers this week cheered the Supreme Court’s decision that the state of Missouri may not deny a playground resurfacing grant to a church, calling the decision a first step toward an end to state bans on using public money to pay tuition at parochial schools.
And on Tuesday, the high court telegraphed that the church-playground ruling could indeed bring about a new legal calculus on school choice. It directed the Colorado Supreme Court to reconsider an earlier decision to strike down private-school vouchers because they violated a state prohibition on public support for religious activities.
“School choice is on a great footing,” said Michael Bindas, a senior attorney with the Institute for Justice, which advocates for private-school voucher programs.
“The court’s reasoning sends a strong signal that just as the court would not tolerate the exclusion of a church from a playground resurfacing program, it will not tolerate the exclusion of a child from a school-choice program solely because they want to use a scholarship at a religious school.”
Voucher opponents said they were disappointed by the court’s decision to allow public money to go to a religious facility, saying it chipped away at the separation of church and state. But they emphasized that the court’s majority opinion was narrowly written and does not broach questions about whether taxpayer dollars may be used for religious purposes such as religious education.
“We worry about any incursion on the protections that the Establishment Clause gives for religious freedom, and this is a serious one,” said Richard B. Katskee, legal director for Americans United for Separation of Church and State. “How big it is is yet to be seen.”
The Missouri church, Trinity Lutheran of Columbia, had sought a state grant to replace the gravel beneath its preschool playground with a rubber surface made of repurposed tires. State officials denied the grant application because Trinity Lutheran is a church, and the state constitution bans direct financial assistance to religious institutions.
The Supreme Court held Monday that the state may not exclude churches from government programs that have a secular intent — such as children’s health and safety, in the case of the playground grant.
Voucher advocates said that line of reasoning opens the way for the high court to rule in favor of allowing public funds to flow to parochial schools. The court’s decision to remand the Colorado school voucher case is a first step toward testing whether that’s true.
In 2015, the Colorado Supreme Court struck down a voucher program in Douglas County, Colo., finding that it violated a state ban on using public funds for religious purposes. Now the state court will reconsider that decision in light of the Supreme Court’s Trinity Lutheran decision, setting up what appears likely to be the first test of whether the court’s reasoning in that case should extend to vouchers for religious schools.
More than three dozen states have constitutional provisions like Colorado’s that bar the use of public money for religious purposes. They have effectively prohibited the establishment of voucher programs that give families direct government subsidies to pay for tuition at private and parochial schools. In some states, school-choice advocates have crafted a way to get around those prohibitions: Tax-credit scholarships, which allow the government to indirectly — and therefore legally — support private and religious education.
The Supreme Court’s decision in the Trinity Lutheran case “marks a great day for the Constitution and sends a clear message that religious discrimination in any form cannot be tolerated in a society that values the First Amendment,” Education Secretary Betsy DeVos, a longtime proponent of voucher programs, said in a statement. “We should all celebrate the fact that programs designed to help students will no longer be discriminated against by the government based solely on religious affiliation.”
But voucher opponents say there’s an enormous difference between allowing public money to go to a church for secular purposes, as the court ruled Monday, and allowing public money to go to a church for religious purposes, which would fly in the face of decades of legal precedent. Writing for the majority, Chief Justice John G. Roberts Jr. clearly signaled that the court was not wading into questions about taxpayer-funded religious activity, emphasizing in a footnote that the court was ruling on a case involving “religious identity with respect to playground resurfacing” and not taking a stance on “religious uses of funding.”
Justices Clarence Thomas and Neil M. Gorsuch agreed with most of Roberts’s opinion — except that footnote, arguing that the line between funding a religious institution and funding a religious purpose is so fuzzy that it is useless. Justices Sonia Sotomayor and Ruth Bader Ginsberg, who dissented from the majority, also wrote that there is no useful distinction between a church’s facilities — which are used to advance a religious mission — and the religious mission itself.
“Today’s decision discounts centuries of history and jeopardizes the government’s ability to remain secular,” Sotomayor wrote, adding that the Trinity decision “leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”