A Play For School Vouchers?

The case now before the Supreme Court is about using state money to resurface a Missouri church playground, but it could pave the way for government support for religious schools, a key but elusive legislative item on the Orthodox community’s agenda.

That question — made even more tantalizing for school voucher supporters by the presence on the bench of newly confirmed conservative Supreme Court Justice Neil Gorsuch — has legal observers in the Jewish community trying to read the tea leaves about the upcoming ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer.

With much at stake in what legal experts say could result in a “revolution” in church-state law, Jewish groups are lining up on both sides of the case — a reflection of the Orthodox/non-Orthodox divide that exists on so many key domestic issues.

Oral arguments were heard April 19 at the high court. The case centers on whether the church’s preschool playground qualifies for a state program that uses recycled tires to resurface playgrounds. Currently the playground is surfaced with pebbles. State officials rejected Trinity’s application in 2012 because Missouri’s constitution, like 38 other states, has a provision, called a “Blaine Amendment,” prohibiting religious institutions from getting public funds.

Those with a stake in the outcome are following the case closely, not so much to find out what the court decides, but rather on what basis.

“This could either be a minor footnote in the court’s history of the treatment of the Establishment Clause, the free exercise clause, or it could be a major game changer,” said Marc Stern, an expert in church-state law who filed a friend-of-the-court brief on the case on behalf of AJC, where he serves as associate general counsel.

To Stern is seems pretty clear that the court will side with the church, but how the justices craft the decision will determine whether this case sets precedence only for a narrow swath of issues under the health and safety rubric, or if it can be extended to religious school funding in general.

“A narrow opinion changes relatively little; a broad opinion will be revolutionary,” Stern said.

Even though a broadly written opinion could mean big bucks for Jewish institutions across the board, the Jewish community is split, with the Orthodox side siding with Trinity and liberal groups planted firmly in the separationist camp.

The Orthodox Union filed an amicus brief arguing that the Blaine Amendments that bar states from giving public money to religious institutions are a clear case of prejudice and must be struck down.

“Blaine Amendments — with all their discriminatory history and perilous consequences — persist, serving as an unconstitutional obstacle that singles out religious institutions and exposes them to unwarranted hazards,” argues OU attorney Nathan Diament in the brief. “The price of religious membership cannot and should not be exposure to the health, safety and security dangers of the 21st century.”

Six other Jewish groups (and one interfaith organization) — the Anti-Defamation League, the Central Conference of American Rabbis, Hadassah, the Interfaith Alliance Foundation, the Jewish Social Policy Action Network, the Union for Reform Judaism and Women of Reform Judaism — signed on to a friend-of-the-court brief submitted by Americans United for Separation of Church and State arguing that there is no proof that the Blaine Amendments stem from bigotry and that the Constitution permits states to protect themselves from entanglement with religion by excluding religious institutions from funding programs.

“The framers of the First Amendment … sought broadly to protect religion against the corrupting influences that could result from public funding — such as inciting unsavory competition for ever-larger slices of governmental largesse, encouraging distortions of religious doctrine as churches try to make themselves more attractive to political decision makers, and engendering political divisiveness and strife along religious lines,” the brief says. “Just as importantly, the framers sought to protect citizens against what they identified as the particular tyranny of being taxed to support houses of worship and religious denominations whose beliefs one does not share.”

AJC submitted an amicus brief “in support of neither party,” which argues that the court should side with the church but on much narrower grounds.

“I think it’s a foregone conclusion that as a matter of federal constitutional law you could fund this playground under these circumstances,” Stern said. But, he added, “the arguments that the church made were much broader than we wanted to support.”

But if the court makes it clear in the opinion that it agrees with the argument that “if you have a generally available benefit, you can’t deny it to somebody just because they’re religious … that’s a much broader and potentially far-reaching argument,” he said. If the opinion is written broadly, to support that assertion, the landscape could radically shift.

“Instead of arguing whether it’s permissible to fund religious education, the question becomes: ‘Must we fund religious education?’” Stern said.

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Like Missouri, New York has a constitutional provision prohibiting the use of state funds for religious schools. Such provisions are commonly called Blaine Amendments, named for a failed federal bill proposed by Rep. James Blaine (R-Maine) in 1885 that would have prevented states from using public tax dollars to fund religious schools.

States that have Blaine amendments in their constitutions do not entirely exclude aid to religious schools, however. New York, for example, pays for busing, secular textbooks, special education and smaller categories, such as school nurses and standardized test administration.

Because what is permissible to fund and what is not is such a gray area, these amendments provide plenty of fodder for court battles. A second school funding case in Colorado, Taxpayers for Public Education v. Douglas County School District, which concerns a school voucher program, is also in the Supreme Court line-up, to be heard after Trinity Lutheran v. Comer has been decided. If the court upholds Douglas County’s voucher program, it would clear the way for school choice proponents to work with U.S. Education Secretary Betsy DeVos, a strong proponent of school choice, to increase the number of voucher programs across the country.

Because many analysts expect the court to side with the church in Trinity Lutheran, private school advocates are nearly buzzing with anticipation over the possibility that, with Justice Neil Gorsuch now on the bench, the opinion will be written broadly enough that it will, as Denver Post opinion columnist Krista Kafer wrote last week, “open the door to school choice programs … and rectify a historic injustice perpetrated more than a century ago.”

Some of those in the Jewish community are hoping for a broadly written opinion. Rabbi David Zwiebel, the executive vice president of Agudath Israel, agreed that while a broad ruling is better than a narrow one, no matter what, a decision in favor of the church would move his group’s cause forward.

“It will clearly be helpful to yeshivot and shuls that are interested in accessing certain forms of public assistance and are being told that they’re ineligible because they’re religious,” he said in an email. “But the extent to which it will be helpful may depend on whether the Supreme Court decides the case on narrow ‘health and safety’ grounds, the impact of which will be felt the next time a strict separationist group challenges a religious institution’s eligibility for security funding, but not in more general school funding matters; or whether the Court embraces a broader rationale that would encompass other forms of state assistance as well. We shall see.”

Those siding with the state are also watching closely for the June decision.

“The petitioner is seeking an unprecedented ruling from the Court that would upend the current legal standard, which protects our nation’s houses of worship from government intrusion and oversight, and risks religious freedom in America,” Ian Scharfman, chair of ADL’s Religious Freedom Task Force, said in a news release. “A decision adopting its argument that Missouri is required to provide taxpayer dollars to houses of worship would jeopardize special legal protections for houses of worship, which safeguard their autonomy.”

Marci Hamilton, an expert on church-state law and founder of the advocacy organization CHILD USA, wrote in an email that if the court sides with the church in this case, it will cause significant change.

“This case has been argued by the church’s lawyers to pave the way to the conclusion that if the government supports secular entities it must also support religious ones,” she wrote. “That would translate into requiring the distribution of school taxes from public to public and religious [and] private.”

No matter how the court words the decision, she said, siding with the church “opens the door for further normalization of the notion that religious entities are entitled to government benefits despite the [constitutional mandate of] separation of church and state.”

“Under both of the above scenarios,” she wrote, “the Establishment Clause is being further narrowed so that it only is in service of free exercise rights and not an independent limit in the union of power between church and state.”

Unlike cases on high-profile issues such as school vouchers and gay rights, Trinity Lutheran v. Comer has remained relatively under the radar, because on its surface, it looks like it’s just about the surface of a playground, Hamilton said.

“Most Americans have little idea what is at stake in this case,” she wrote. “They can’t see that this is an attempt to radically alter constitutional doctrine to create an ever-widening pathway from government coffers to religious entities.”

amyclark@jewishweek.org