“Trinity Lutheran opens the door because it states simply that if a religious entity is otherwise qualified to take part in a public benefit program, then it cannot be prohibited solely on the basis of its religious affiliation,” said the University of Connecticut professor Preston Green.
Aaron Saiger, a law professor at Fordham University, agreed.
“I have no doubt that this case makes the door more open than it was a month ago,” said Saiger, who wrote a 2013 law-review article on religious charters.
If it became easier for religious institutions to run charter schools, it would mark a significant change in several states. According to Green, who raised the idea of charters run by churches in a 2001 law-review article, 10 states and Washington, D.C., explicitly bar charters from being run by or affiliated with a religious entity.
Green and Saiger say those prohibitions might be threatened by the Supreme Court’s latest ruling. The decision could also affect rules on whether religious entities can authorize charter schools; in Indiana, a lawsuit was recently filed to stop a Christian college and seminary from overseeing charters.
If states or the court were to apply the Trinity Lutheran logic to charter schools, it would not necessarily mean that the schools could teach religion or offer religious services, only that they could be operated by a religious institution. All states with charter laws mandate that they maintain secular rules and a secular curriculum.
The Trinity Lutheran case focused on whether Missouri could bar a church-run preschool from participating in a program for resurfacing playgrounds. Missouri denied the school’s application, consistent with the state’s Blaine Amendment, which prohibits public money from going to religious institutions—a rule most states, including New York, have adopted.
The Supreme Court ruled that this amounted to religious discrimination and was thus unconstitutional. In a footnote, though, the decision was explicitly limited to the situation at hand. (Two conservative justices, who were part of the majority, disavowed that aspect of the opinion.)
The narrow ruling means the impact of Trinity Lutheran won’t be immediately felt, and that it will turn on further interpretation from lower courts, state legislators, and perhaps ultimately another Supreme Court case.
“While the court limited the decision in a footnote to the facts of that case … the court does go on to talk about a number of cases where it lays out the general proposition that religious entities cannot be discriminated against,” Green said.
Not everyone agrees that the recent opinion might affect charters. Daniel Mach, the director of the ACLU Program on Freedom of Religion and Belief, which advocates for a strict separation of church and state, said Trinity Lutheran “shouldn’t open the door to those sorts of claims.”