John Kramer
John Kramer · June 26, 2017
  • Today’s narrow ruling leaves open further debate and legal challenges on state Blaine Amendments, including the Institute for Justice’s appeal of a Colorado school choice case in which the government discriminates against parents who want to select religious schools for their children.
  • Attorneys from the Institute for Justice are the experts on the Blaine Amendments.
  • Today’s ruling against the state bodes well for school choice programs by reaffirming the principle that the government must remain neutral with regards to religion and may not single out religious entities for disfavored treatment.

Arlington, Va.—In an important decision handed down this morning, the U.S. Supreme Court held that the state of Missouri violated the U.S. Constitution when it barred a church-run preschool from participating in the state’s playground resurfacing program. The ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer has major implications for the nation’s school choice movement, which seeks to empower parents to choose the schools, religious or non-religious, that are best for their children.

Legal experts at the Institute for Justice, which has defended every major school choice program from constitutional challenges, welcomed today’s decision and pointed to another case they have appealed to the U.S. Supreme Court as the next big case, one that could resolve lingering questions about whether the government can discriminate against parents who select religious schools for their children through publicly funding school choice programs.

“Today’s decision reaffirms the fundamental principle that government must be neutral with respect to religion and therefore cannot exclude religious institutions from otherwise generally available public benefit programs,” explained Michael Bindas, a senior attorney with the Institute for Justice (IJ), which filed an amicus brief in support of the preschool. “This principle of religious neutrality—that government may neither favor nor disfavor religion—applies whether the government is enabling schools to resurface their playgrounds or empowering parents to direct their children’s education.”

The program at issue in Trinity Lutheran offers grants to schools and other nonprofit institutions to reimburse them for the cost of purchasing playground resurfacing materials made from recycled tires. A church-run preschool applied for one of the grants, and the state denied the application. The basis for excluding the preschool, the state explained, was a provision of the Missouri constitution known as a “Blaine Amendment,” which prohibits public payments “in aid of any church, sect or denomination of religion.”

Blaine Amendments, which are found in some 37 state constitutions, are rooted in 19th-century anti-Catholic bigotry. They are also the primary weapons of school choice opponents, who rely on them to mount legal challenges to school choice programs throughout the country. To learn more about Blaine Amendments and their impact on school choice, go to

In today’s opinion, the Court held that Missouri violated the Free Exercise Clause of the U.S. Constitution when it relied on its Blaine Amendment to exclude the religious preschool from the playground resurfacing program. As the Court explained, “[T]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.”

According to IJ Senior Attorney Dick Komer, “The Blaine Amendments are vestiges of 19th-century bigotry, not some high-minded statement about church-state relations.  The Court was right to prohibit these engines of animus against Catholics from being transmuted into engines of discrimination against all religion.”

Today’s outcome is a welcome one for America’s growing school choice movement. School choice programs use a variety of means—e.g., scholarships, education savings accounts and tax credits—to put parents in the driver’s seat of their children’s education, enabling them to choose from a wide array of educational options, religious and non-religious, to best meet their children’s educational needs. Today, there are almost 60 such programs throughout the country.

Sadly, when these programs are passed, there is often a sprint to the courthouse door by the likes of public school teachers unions, the ACLU and Americans United for Separation of Church and State. Although the U.S. Supreme Court held in 2002 that school choice programs are permissible under the U.S. Constitution, these groups insist that school choice programs violate state Blaine Amendments. The issue remains unsettled, as state courts have come to different conclusions on the question. But today’s decision from the nation’s highest court suggests that that uncertainty may soon come to an end.

“This decision has implications beyond scrap tires and church playgrounds,” explained Bindas. “The Court’s reasoning sends a strong signal that, just as the Court would not tolerate the use of a Blaine Amendment to exclude a religious preschool from a playground resurfacing program, it will not tolerate the use of Blaine Amendments to exclude religious options from school choice programs.”

In fact, there is already a vehicle waiting for the Court if it wants to take up that issue: IJ has asked the Court to review a 2015 judgment of the Colorado Supreme Court, which held that a Douglas County, Colo. school choice program violated that state’s Blaine Amendment. The U.S. Supreme Court has not yet decided whether to hear the case, Doyle v. Taxpayers for Public Education, but rather has been “holding” it pending the Court’s resolution of Trinity Lutheran. The Court is expected to decide whether to hear Doyle as early as tomorrow.

Bindas concluded: “The Supreme Court should take up the Douglas County school choice case in order to put the Blaine Amendment issue to rest once and for all—and to make the dream of greater educational opportunity a reality for millions more of America’s kids.”

“Sooner or later, the U.S. Supreme Court will need to address the lingering bigotry of Blaine Amendments that stand out like scars in state constitutions across the nation,” concluded Institute for Justice President Scott Bullock.  “The Court should now take up the Douglas County case and explicitly reject government discrimination against the free and independent choices of parents who choose religious schools for their children in school choice programs.”

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[NOTETo arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205.]