On April 19, the U.S. Supreme Court will hear oral arguments in a closely watched case, Trinity Lutheran Church v. Comer, which could pave the way for state funding of private religious schools.

The Supreme Court delayed oral arguments in the controversial case for more than a year, leading many to speculate that the justices were split 4 to 4. But after it became clear that conservative judge Neil Gorsuch was on a path to Supreme Court confirmation, the Court scheduled the case for the April 19 argument. It will be one of the first cases Justice Gorsuch hears, and he could be pivotal in allowing more public funds to be diverted to private school vouchers for religious schools.

The case involves a challenge to an 1875 provision in the Missouri Constitution which prohibits spending taxpayer funds “directly or indirectly, in aid of any church, sect or denomination of religion.” In 2012, the Trinity Lutheran Church applied to a state-funded program to use recycled tires to repave a playground in the church’s nursery school. Trinity was denied funding under the Missouri Constitution and claims that the denial of public funds is a form of discrimination that violates both the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment and the First Amendment’s guarantee of the free exercise of religion.

Supporters of the state constitution counter that the prohibition on funding religious institutions is an entirely appropriate policy which serves several purposes. It seeks to keep the state from getting entangled in religion, shields taxpayers from being forced to support religions whose beliefs they do not share, reduces religious divisions in a diverse nation, and preserves public money for public schools.

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What both sides agree on is that the stakes in the case are much higher than who funds a preschool playground in Missouri, because the case could open the door to private school vouchers across the country. In 2002, the U.S. Supreme Court, in a sharply divided decision, held that the First Amendment of the U.S. Constitution, which prohibits the establishment of religion, does not also prohibit private school voucher programs that are used by parents for religious schooling. But about three-quarters of state constitutions have their own provisions separating church and state that prohibit funding for religious institutions, just as Missouri presently does. Supporters of public education have successfully used these state constitutional prohibitions to challenge a number of efforts to promote private school vouchers that are used at religious schools.

These state constitutional prohibitions are known as baby Blaine amendments, named after the nineteenth century U.S. House Speaker James Blaine, who sought a federal constitutional amendment to deny taxpayer funding to religious institutions. Although the federal amendment failed, many states adopted similar amendments to their constitutions.

Trinity Lutheran and supporters of private school vouchers claim they have the moral high ground in the case because the some proponents of the Blaine amendments harbored anti-Catholic bias.  In the nineteenth century, many public schools had an explicitly Protestant bent to the curriculum, so Catholics set up their own schools to which Protestants did not want funding to flow. The Blaine amendments, Justice Clarence Thomas has written, were “born of bigotry.”

But as a distinguished group of historians who filed an amicus brief in the Trinity Church case note,

The no-funding principle, based on notions of religious liberty and freedom of conscience, arose prior to the rise of significant Catholic parochial schooling and independently of the nativist anti-Catholic movement. Specifically, no evidence ties Missouri’s no-funding provisions to anti-Catholic motivations.

In fact, many baby Blaine amendments pre-date the influx of Roman Catholic immigrants to the states in which the amendments were adopted. James Blaine himself had an Irish Catholic mother, as Diane Ravitch notes.

Moreover, whatever the motivations may have been for the amendments in the nineteenth century, at a time when public schools reflected a Protestant ideology, today, public schools are nonsectarian institutions which do not engage in religious practices. Indeed, the values the baby Blaine amendments embody reflect some profound insights that are fundamental to American democracy and the free exercise of religion that predate “either the first significant wave of Irish Catholic immigration or the systematic establishment of Catholic parochial schooling,” the historians’ brief notes. Among the key justifications for prohibiting taxpayer money for private religious schools, four stand out:

  1. Policies should not require taxpayers to fund religious beliefs they don’t share. The free exercise of religion means not compelling individuals to worship in a certain way, and as an extension of that principle, policies should not compel individual taxpayers of one religion to fund the religious practices of a different religion.
  2. Religion is more freely exercised when it is not entangled with the state. Religion flourishes in the United States (compared to Europe) in part because we have no established church and don’t tend to provide overt public support for religious institutions. Because there is little taxpayer funding of religion in America, churches and other religious organizations are not tempted to distort their beliefs to curry favor with government officials in power. As Diane Ravitch notes, “Religious liberty is best protected by keeping it separate from government dollars and government control.”
  3. In a diverse nation, schools should promote social cohesion, not religious Balkanization. In a nation that draws immigrants from across the world, and from many different faiths, public funds should be used to promote social cohesion rather than division. Early advocates of public education wanted it to be moral but not sectarian, so its appeal would be universal and avoid religious division. A system in which every religious group goes off to its own set of schools, by contrast, would Balkanize a highly diverse nation. As the late journalist Michael Kelly noted, “Public money is shared money, and it is to be used for the furtherance of shared values, in the interest of e pluribus unum.” Schools that divide by race or religion, “take from the pluribus to destroy the unum.”
  4. We should focus scarce resources on public schools that promote democratic values. A final reason to oppose diversion of taxpayer money to private religious schools is that doing so weakens American public education, an institution uniquely established to promote the values of our democracy. As adherence of democratic values declines among young Americans, it seems especially inappropriate to outsource education to institutions whose goal, at the end of the day, is to instill particular religious beliefs, not an appreciation for democracy.

The federal district and circuit courts in the Trinity Church case upheld Missouri’s decision not to become entangled with religious institutions. But with President Trump’s appointee on the Supreme Court possibly holding the balance of power, the justices may take a serious step toward dismantling the wall separating church and state—a structure that has served our democracy so well over the generations.