Good news: Monday’s Supreme Court ruling on religious liberty was even better than we thought. The Justices ruled 7-2 that a church could not be banned from a public benefit program merely because it is a church. On Tuesday the Justices extended that principle by overturning a ruling that struck down Colorado’s school voucher program on religious grounds.
In 2011, Colorado’s Douglas County adopted a Choice Scholarship Program to let 500 students attend a local private school. But groups including the American Civil Liberties Union sued. The Colorado Supreme Court killed the program citing the state’s version of the Blaine Amendment, one of many state anti-Catholic laws from the 1800s to prevent public money from funding religious schools ( Doyle v. Taxpayers for Public Education).
The Douglas County School District and the Institute for Justice, which represents three families in Colorado, appealed to the Supreme Court in 2015, but the Justices held the petition pending the resolution of Trinity Lutheran v. Comer on Monday. On Tuesday the Court vacated and remanded Doyle to the lower court for reconsideration in keeping with Trinity Lutheran’s holding that Missouri’s application of the Blaine Amendment violated the First Amendment’s Free Exercise Clause.
The High Court typically vacates and remands only when the Justices think there is a “reasonable probability” that the lower court got it wrong. Colorado’s do-over is a warning to other states that might use Blaine Amendments to derail school choice programs that threaten teachers unions and the public school monopoly.
The win comes at a good time for school choice advocates who have been building momentum in the states. In May three families successfully challenged a Montana rule that prevented a voucher program from being used at religious schools. On Monday the Georgia Supreme Court unanimously upheld a program of tax credits for scholarships to some 13,000 students to attend private schools.
School choice is spreading because parents want the chance to get their child a better education than they receive in local public schools. Sometimes that enhanced opportunity is offered by religious schools, and the First Amendment does not allow the state to discriminate on the basis of religion.
Judicial liberals have interpreted Monday’s Trinity Lutheran ruling as applying only to school playgrounds. But in his concurrence Justice Neil Gorsuch wrote that the Court’s playground decision should be understood broadly because jurisprudence must be governed by general principles. “The general principles here do not permit discrimination against religious exercise,” he wrote, “whether on the playground or anywhere else.”
Appeared in the June 28, 2017, print edition.