(Guest Post by Jason Bedrick)
Yesterday, the U.S. Supreme Court ruled in Trinity Lutheran that the U.S. Constitution prohibits the government from excluding otherwise eligible religious organizations from benefitting from publicly funded programs merely because they are a religious organization. (I discussed the implications here.) However, Footnote 3 said:
This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.
So, does the case have broader implications beyond playgrounds? Interestingly, Chief Justice Roberts “delivered the opinion of the Court, except as to footnote 3,” and two additional justices, Gorsuch and Thomas, concurred in the opinion but not in the footnote, explaining:
Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.” […] And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.
Today, SCOTUS has indicated that its ruling in Trinity indeed does have implications beyond the playground. The Court has vacated the Colorado Supreme Court’s decision that struck down the Douglas County voucher program based on the state’s Blaine Amendment, and ordered the Colorado Supreme Court to reconsider the case “in light of [the] Trinity Lutheran” decision.
If Trinity Lutheran indeed does apply to school vouchers (Footnote 3 notwithstanding), then it could spell the beginning of the end for the odious Blaine Amendments.