Trinity Lutheran is the kind of case that gets legal scholars excited. “I’ve been waiting for this issue to come up for about 22 years now,” said Rick Garnett, a professor of law and political science at Notre Dame University. Garnett wasn’t alone—groups from Southern Baptists to Jews filed amicus briefs in this seemingly anodyne case. On its surface,Trinity Lutheran seems like it’s just about keeping kids’ knees from getting scraped. But it raises a highly contested question: What does the law say about when and how the government can fund religious institutions?
“The American tradition is that we don’t give direct money to churches,” said Marty Lederman, an associate professor at Georgetown University Law Center.
In recent years, though, that tradition shifted somewhat. In 2000, the Supreme Court ruled in Mitchell v. Helms that a Louisiana parish could provide computers and library books to private schools, including the region’s many Catholic schools. The Court stopped short of saying the government could give cash to religious schools, though. Some legal scholars argue that Trinity Lutheran could shift that standard: If the Court were to rule that Missouri can and should provide grants to eligible religious organizations, a whole new set of legal challenges and policy questions could open up.
In particular, the decision in Trinity Lutheran could influence the debate over school vouchers. “For a long time, it was thought that the federal Establishment Clause stood in the way of school-voucher programs that allowed religious institutions to participate,” said Garnett. “Over time, in the late ’80s and through the ’90s, the court’s doctrine evolved.” In the early 2000s, he said, the Supreme Court ruled that the Establishment Clause doesn’t allow the government to directly fund religious activities, but it’s not a problem if people use state-funded vouchers to attend private religious schools.
Trinity Lutheran is now arguing that Missouri is discriminating against the church, and thus violating the U.S. Constitution, by prohibiting it from receiving state grants. If the court were to rule in Trinity Lutheran’s favor, “that would open up the way, in some states, for more experimentation with school choice, whether it were tax credits or actual vouchers,” said Garnett. “That’s a big deal, policy-wise.”
Most states have constitutional provisions like Missouri’s which prohibit them from giving money to churches. The history of these measures is highly contested. Many were passed at various points in the 19th century, and scholars like Garnett argue that they were largely motivated by anti-Catholic sentiment: Legislators feared that private Catholic schools would undermine the Protestant-oriented public-education system.
In 1875, James G. Blaine, then a member of the House of Representatives, proposed a federal constitutional amendment that would bar tax dollars from going to sectarian institutions. Historians suspect Blaine hoped to capitalize on the dominant anti-Catholic sentiment of the time to help him in a presidential bid. Blaine’s U.S. constitutional amendment failed, but many states adopted their own version of the provision, which are now often referred to as Blaine amendments after 19th-century statesman. “Symbolically, to the extent that these provisions do have a history, it’s not a bad thing to have that history repudiated,” Garnett said.