Written by Don Byrd

“In Trinity Lutheran, the Supreme Court changed the landscape of First Amendment law,” the New Mexico Supreme Court noted in a decision last week approving a longstanding textbook loan program that benefits religious schools. The case, Moses v. Ruszkowski, was on remand from the U.S. Supreme Court to reconsider in light of its Trinity Lutheran decision, which held that a neutral funding program cannot exclude an entity merely because of its religious status, despite state law barring aid to religion. Applying that 2017 opinion, a 5-2 New Mexico Supreme Court reversed its previous ruling that a textbook funding program violates the state constitution, which similarly but more broadly prohibits aid to private schools, secular or religious.

Church-State watchers have eyed the Moses case and others for an indication of how far the troublesome Trinity Lutheran opinion will reach into disputes concerning government funding of religion, particularly in state laws that have long included strict “no aid to religion” provisions (often called “Blaine Amendments”). Here is an excerpt from the New Mexico Court’s opinion explaining the impact of the Trinity Lutheran decision:

Trinity Lutheran was the first Supreme Court opinion to hold that the Free Exercise Clause required a state to provide public funds directly to a religious institution. The Supreme Court also emphasized that a state’s interest in maintaining church-state separation does not justify the withholding of generally available public benefits based on the religious status of the recipient. Like the grant program at issue in Trinity Lutheran, the textbook loan program under the IML is a generally available public benefit program.

Most concerning, the Moses Court found that the no aid provision cannot justify the exclusion of private schools without running afoul of the Free Exercise clause, reversing its previous conclusion, because the history of the law is rooted in anti-Catholic religious animus, a controversial historical reading which many advocates argue against. The historical analysis must be conducted, the court explained, as a result of both the Trinity Lutheran and Masterpiece Cakeshop rulings.

Evolving First Amendment jurisprudence suggests that courts should consider the historical and social context underlying a challenged government action to determine whether the action was neutral or motivated by hostility toward religion.“Factors relevant to the assessment of governmental neutrality include the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.”

In Moses II, this Court acknowledged that the federal Blaine amendment originated in anti-Catholic prejudice and that Congress, through the Enabling Act, forced New Mexico to adopt a Blaine provision as a condition of statehood. The United States Supreme Court likewise has recognized that the federal Blaine amendment was a product of anti-Catholic animus. This history casts constitutional doubt on the motive underlying Article XII, Section 3. After Trinity Lutheran and the cases interpreting the Free Exercise Clause that have followed, we must reconsider our conclusion through a different lens, one that focuses on discriminatory intent.

Prior to Trinity Lutheran, this Court’s interpretation of Article XII, Section 3 in Moses II fell into the “play in the joints” between what the Establishment Clause permits and what the Free Exercise Clause requires. In other words, in Moses II we concluded that New Mexico’s interest in restricting public funding for private schools was a lawful basis for restricting funding for religious schools. Following Moses II, the Supreme Court emphasized that the Free Exercise Clause is implicated by a law that “single[s] out the religious for disfavored treatment.” The Supreme Court has since underscored the state’s constitutional duty to avert religious discrimination. Thus, we conclude that this Court’s previous interpretation of Article XII, Section 3 in Moses II raises concerns under the Free Exercise Clause.

Ultimately, however, the court determined that it could interpret the provision in a way that does not disallow the textbook loan program in the first place, thus does not implicate those constitutional concerns. The textbook program, it held, does not constitute “support” and so the no aid provision is not triggered.

The dissent is not impressed with either the majority’s historical conclusions about the Blaine Amendment or the decision to reconstrue the no aid provision such that the textbook loan program does not qualify as “support.”

Moses II’s conclusion that the plain language of Article XII, Section 3 prohibits the state from loaning textbooks to children enrolled in private schools does not run afoul of the principles articulated in Trinity Lutheran. There is insufficient evidence Article XII, Section 3 stems from discriminatory motives. Respondent and Intervenor’s renewed free-exercise claims fail. The majority disagrees and embraces a construction of Article XII, Section 3 that is inconsistent with the provision’s plain language and permits the state to loan secular textbooks to private school students, including religious students. See Maj. Op. ¶ 46. They do so to “avoid constitutional concerns,” but these are concerns that do not exist.

When the Trinity Lutheran ruling was released, the Baptist Joint Committee issued a statement warning that the decision “upends precedent and adds confusion to the law.” Analyzing the opinion, BJC General Counsel Holly Hollman wrote, “Fortunately, the scope of the ruling is decidedly limited,” and that “it leaves many questions about government funding… for another day.” If the Moses opinion is any indication, particularly in its historical analysis of laws barring aid to religion, the Trinity Lutheran opinion may have a wider and more detrimental impact than is necessary.