John Kramer
John Kramer · April 5, 2017
  • Trinity Lutheran concerns a Missouri program that offers grants to schools and other nonprofit institutions to reimburse them for the cost of purchasing playground resurfacing materials. A church-run preschool applied for one of the grants, but the state denied the application solely because the preschool was religious.
  • The Missouri Constitution’s “Blaine Amendment” is at issue in this case; many U.S. Supreme Court justices have said such amendments were “born of bigotry” and called for their legacy to be “buried now.”
  • A ruling against the state could expand school choice by removing a principal anti-choice argument, but a ruling upholding the ban may not impact school choice programs because such aid is always directed to individual parents rather than to the schools themselves.

Arlington, Va.—On April 19, the U.S. Supreme Court will hear argument in a case that could have big implications for the nation’s school choice movement. The case, Trinity Lutheran Church of Columbia, Inc. v. Comer, concerns the federal constitutionality of applying “Blaine Amendments”—state constitutional provisions rooted in 19th-century anti-Catholic bigotry—to discriminate against religion in public benefit programs. Blaine Amendments are the primary weapons of school choice opponents, who rely on them to attack programs that put parents, rather than government, in charge of their children’s education.

“With Trinity Lutheran, the Supreme Court has the opportunity to remove Blaine Amendments from the arsenal of those who try to deprive children of educational alternatives,” said Michael Bindas, senior attorney with the Institute for Justice (IJ), the nation’s leading legal advocate for school choice. “The Court should seize that opportunity.” Bindas is the lead author of a friend-of-the-court brief that IJ submitted in Trinity Lutheran. He is also lead counsel in Doyle v. Taxpayers for Public Education, another Blaine Amendment case, which IJ has asked the U.S. Supreme Court to hear.

Trinity Lutheran concerns a Missouri program that 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, but the state denied the application. The basis for excluding the preschool, the state explained, was a provision of the state constitution that prohibits public payments “in aid of any church, sect or denomination of religion.”

The Missouri constitutional provision at issue is a “Blaine Amendment”—a type of provision found in 37 state constitutions. As IJ noted in its brief supporting the church’s position, these provisions have a sordid history dating back to the early 19th century. At that time, public schools were overtly religious—and non-denominationally Protestant. Bible reading, hymn singing, and prayer were common in the public schools, and invariably it was the King James, or Protestant, version of the Bible that was read and Protestant prayers that were recited.

As immigration increased in the middle of the 19th century, the newly arrived, largely Catholic parents objected to their children being compelled to attend the Protestant public schools. In some areas, Catholic students were beaten or expelled for refusing to participate in Protestant exercises. After Catholics’ efforts to secure better treatment in the public schools failed, they began demanding a share of the public funds to support their own schools. This sparked a Protestant backlash, and a number of states passed laws or amended their constitutions to prohibit public funding of so-called “sectarian,” or Catholic, schools. Missouri was one such state.

Enter James G. Blaine, a congressman and political opportunist. In 1875, Blaine seized on this anti-Catholic sentiment and proposed a similar amendment to the U.S. Constitution. It had the twin goals of preserving the Protestant nature of the nation’s public schools and prohibiting public funding of Catholic schools. Blaine’s proposed amendment failed narrowly in the Senate in 1876, but like-minded members of Congress achieved through the back door what Blaine could not achieve through the front:  As new states entered the Union, Congress required many of them to include Blaine provisions in their own constitutions. Others adopted Blaine provisions of their own accord.

“The Blaine Amendments are vestiges of 19th-century bigotry, not some high-minded statement about church-state relations,” explained Richard Komer, a senior attorney with IJ and co-author of its brief in Trinity Lutheran. “To make matters worse, these engines of animus against Catholics have, over time, become engines of discrimination against all religion.”

In 2000, a four-justice plurality of the U.S. Supreme Court recognized this history. In Mitchell v. Helms, these justices stressed that the Blaine movement was “born of bigotry” and called for its legacy to be “buried now.”

The Court now has the opportunity to do just that. After Missouri relied on its Blaine Amendment to exclude Trinity Lutheran’s preschool from the scrap tire program, the church filed a federal lawsuit, arguing that the state’s action discriminated against religion in violation of the Free Exercise and Equal Protection Clauses of the U.S. Constitution. The lower courts rejected Trinity Lutheran’s claims, but the U.S. Supreme Court agreed to hear the case, which will be argued on April 19.

“The Court’s decision in Trinity Lutheran could have implications far beyond scrap tires and church playgrounds,” observed Timothy Keller, managing attorney of IJ’s Arizona office and co-author of IJ’s brief. “A win for the church’s school could remove one of the last remaining legal clouds hanging over school choice.”

School choice programs empower parents to choose the schools—religious or nonreligious—that are best for their children. Today, there are 59 such programs operating throughout the nation, and they use a variety of means—such as scholarships, education savings accounts and tax credits—to put parents in the driver’s seat of their children’s education. Parents—and not the government—make the independent choice of where to send their children to be educated.

Sadly, when these programs are passed, there is often a sprint to the courthouse 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 try to employ Blaine Amendments as a vehicle to block educational options for parents and their children. Many state courts, however, have rejected the argument of those who oppose school choice.

As Bindas noted, “If the Supreme Court in Trinity Lutheran holds that Blaine Amendments cannot be used to discriminate against religion in public benefit programs, that holding would deprive school choice opponents of their primary weapon and clear the way for increased educational opportunities for kids.”

At the same time, a decision upholding Missouri’s exclusion of the church-run preschool would almost certainly not impede the cause of school choice.

“Even if the Court holds that religion-based exclusions are constitutional in public programs that provide aid to institutions, it is highly unlikely that the Court would reach the constitutionality of such exclusions in programs that provide aid to individuals, which is precisely the type of aid that school choice provides,” said Bindas. “If anything, the Court likely would—and should—leave that question for another day if it rules against Trinity Lutheran,” a point IJ also made in its friend-of-the-court brief.

In fact, there is already a vehicle seeking U.S. Supreme Court review if the Court wants to take up that issue: IJ 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 Court has not yet decided whether to hear the case, Doyle v. Taxpayers for Public Education, but rather appears to be “holding” it pending the Court’s resolution of Trinity Lutheran.

“One way or another, the Blaine issue will be resolved once and for all,” concluded Institute for Justice President Scott Bullock.  “And when it is, the dream of greater educational opportunity will be a reality for millions more of America’s kids.”

To learn more about Blaine Amendments and their impact on school choice, go to