Written by Don Byrd

A new piece in the NYTimes addresses the likely impact of Supreme Court nominee Brett Kavanaugh on the future of school voucher cases, in light of statements he has made praising former Chief Justice William Rehnquist’s rulings. The story includes a helpful description of the handful of cases winding through courts that could have a big impact on state laws (sometimes referred to as “Blaine Amendments”) protecting against government funding of religion and religious education.

Here is an excerpt:

There are no voucher cases pending before the Supreme Court, but relevant cases are moving through lower courts: a case in New Mexico… involves the exclusion of religious and private schools from a state textbook-lending program.

Just last week, the Puerto Rico Supreme Court ruled in favor of a government-sponsored voucher program, rejecting an argument from the teachers union that the program violated a “support clause” in the island’s Constitution that prohibits support of nonpublic schools.

The conservative group that represented the families in Puerto Rico, the Institute for Justice, has litigated more than 20 educational choice cases, and has another pending before the Montana Supreme Court. In that case, the state Department of Revenue prohibited families from participating in a tax credit scholarship program if they planned to use the scholarship at religious schools.

On Tuesday, the institute… petition[ed] a United States District Court in Washington to challenge the state’s Blaine Amendment. The group is representing a private Christian academy that was excluded as an option for college students who qualify to earn financial aid through the work-study program.

Cases like these will test the limits of the Supreme Court’s Trinity Lutheran Church case, in which the court ruled that the State of Missouri could not exclude a church from its playground refurbishment grant program, despite state law prohibiting government funding of religion. As the article notes, that decision was explicitly narrow in scope. The extent, however, to which courts will find the same principle applies in other contexts is already being pressed.

In other words, a follow up case to Trinity Lutheran may not be far off. It could easily be a school funding dispute in one of the many states that have chosen to maintain religious liberty protections against government support for religious education. 

For more on “no aid to religion” provisions in state law and how they help churches protect their independence, see BJC General Counsel Holly Hollman’s 2016 column on the topic for SCOTUSblog.