A school bus arrives at Trinity Lutheran Church in Columbia, Mo., on the morning of Oct. 18, 2016. RNS photo by Sally Morrow

Neil Gorsuch could help religious schools get public funding

(RNS) Neil Gorsuch, President Trump’s Supreme Court nominee, is known for his commitment to religious freedom and preventing government from discriminating against religious organizations and individuals.

If confirmed, the new justice could help sway a case that could be a landmark in American education, paving the way for public funds to go to private schools.

Trinity Lutheran Church of Columbia v. Pauley involves a Missouri state program that provides playground safety grants to schools and other organizations. The church's preschool, applied for a grant and ranked fifth out of 44 applicants based on the overall quality of its proposed plan.

Despite the ranking, the Missouri denied Trinity a grant because it is a religiously affiliated institution. The state cited, among other things, Article IX, Section 8 of the Missouri Constitution, commonly referred to as a Blaine Amendment, which prohibits public funding of any "school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination." Around three dozen states have Blaine Amendments in their state constitutions, including large states such as California.

Children play on a gravel paved playground at Trinity Lutheran Church’s Child Learning Center in Columbia, Mo., on Oct. 18, 2016. RNS photo by Sally Morrow

Children play on a gravel paved playground at Trinity Lutheran Church’s Child Learning Center in Columbia, Mo., on Oct. 18, 2016. RNS photo by Sally Morrow

 This image is available for web and print publication. For questions, contact Sally Morrow.

Trinity Lutheran sued Missouri saying that the state's actions, based on the Missouri Blaine Amendment, violate the free exercise, equal protection, free speech and establishment clauses of the First and Fourteenth Amendments to the U.S. Constitution.

Opponents of school choice programs that allow public funding to follow a child to private schools, including those run by religious organizations, have used state Blaine Amendments to block their implementation.

For example, seizing on Nevada’s Blaine Amendment, opponents of that state’s recently enacted Education Savings Account program, which creates government funded individual accounts for parents to pay for private schooling for their children, sued to stop the program.

Adam Laxalt, Nevada’s attorney general, argued, “Nevada’s constitution does not require religious discrimination,” but also cited Trinity Lutheran saying, “we are hopeful that our nation’s highest court will confirm that the U.S. Constitution does not allow that either.”

While the Supreme Court could decide the Trinity Lutheran case on narrow grounds, it could also decide to take on the constitutionality of state Blaine Amendments, as Laxalt would like it to do. It appears that the high court might indeed decide to do so.

Many observers had expected a decision in the Trinity Lutheran case by late 2016, but arguments have not even been scheduled yet, which leads legal experts to underscore the potential landmark importance of the case.

So how would the addition of Neil Gorsuch to the high court impact Trinity Lutheran? While it is impossible to say for sure, a clue can be gleaned by examining his opinion in Yellowbear v. Lampert. In that case, prison officials in Wyoming denied a member of the Northern Arapaho Tribe access to a sweat lodge that he said he needed to practice his religion.

In a ruling written by Gorsuch, the U.S. Court of Appeals ruled that the prison discriminated against the prisoner on religious grounds.

President Donald Trump steps back as Neil Gorsuch (L) approaches the podium to speak after being nominated to be an associate justice of the U.S. Supreme Court at the White House in Washington, D.C., U.S., January 31, 2017. Photo courtesy REUTERS/Carlos Barria

President Trump steps back as Neil Gorsuch, left, approaches the podium to speak after being nominated to be an associate justice of the U.S. Supreme Court at the White House in Washington, D.C., on Jan. 31, 2017. Photo courtesy REUTERS/Carlos Barria

 This image is available for web and print publication. For questions, contact Sally Morrow.

In Trinity Lutheran, like in Yellowbear, the issue is government discrimination based on religion. Gorsuch, therefore, could be the crucial vote needed to strike down the discriminatory Blaine Amendments. The consequences would be enormous.

As the Institute for Justice, which has litigated many school-choice cases, says of Trinity Lutheran: “if this court holds that religious-based exclusions in public-benefit programs violate the federal Constitution, it will put the argument of school-choice opponents to rest, and school-choice families will be able to continue accessing the educational options, religious or not, that are best for their children.”

Thus, following the confirmation of Education Secretary Betsy DeVos, who has campaigned in favor of school choice, Gorsuch’s confirmation to the Supreme Court could determine the future direction of American education.

(Lance Izumi is Koret senior fellow in education studies and senior director of the Center for Education at the Pacific Research Institute. He previously served as speechwriter to U.S. Attorney General Edwin Meese in the Reagan administration)


  1. I’m offended by the prospect of my tax dollars possibly being siphoned off to support teaching religious fairy tales such as the Christian ones, especially at a time when America needs better education in core maths, science, and critical thinking, to be globally competitive, not more ingraining of religious delusions in young minds.

    Perhaps it’s time again for the Flying Spaghetti Monster to come to the rescue on point and establish more Pastafarian schools as candidates for public funding. See venganza.org.


  2. In what way could laws designed to uphold the Establishment Clause such as the state level Blaine Amendments possibly be considered discriminatory? Because they don’t allow public funding for sectarian religious education? As a rule of thumb, your God has never been entitled to our tax dollars.

    DeVos’s proposed attack on public education represents several repugnant goals which violate Constitutional principles at all levels:
    1. It destroys the fundamental right and privilege of all citizens to obtain an education. Charter Schools and Private Schools have no mandate to teach entire populations. They succeed largely by weeding out students who would bring scores down by average. Stealing money from public schools to support them will not improve education. Only make things worse for many

    2. At no point is it legal for the government to be subsidizing the promotion of sectarian religious belief. Doing so is intensely discriminatory. To entangle one faith or group of faiths with the apparatus of government is to show favor for them at the expense of others.

    3. “School Choice” is a bullshit phrase. When one is destroying public schools in favor of a privatized system, there is still no choice for the poor. One cannot think of a single for profit service which caters exclusively to the poor which is not predatory in some way.

    4. It represents an attempt to profit at the expense of the public. Privatizing education means diverting funds to people and companies who have no responsibility to serving public needs. Profit motives create strange disincentives to providing quality service. Especially when one is serving the poor. Make no mistake in a privatized system it would not be the parents who are customers, but the government.

    The current attack on public education by Christian Conservatives marks one of the most cretinous, destructive and pernicious plaforms they have out there. They are so intent of the government subsidizing their sectarian tribe that they want everyone else to suffer for it.

  3. Well said, Spuddie.
    It’s “Let them eat cake” masquerading as “morality”.
    It’s forcing the many to fund the few so the few can further deprive the many.
    And it has nothing to do with Christianity — although Matthew 25:44-46 has much to do with it.

  4. HELL, NO! I don’t want tax dollars supporting religion.

  5. Thanks to the vulgar stupidity of filthy dirty and profane intellectuals, political, economic, and religious thought isn’t complex and all the same thing!

    We all care. We all have a sense of fairness. We all don’t like coercion but otherwise nothing is sacred. Everybody’s body is an amusement park. Betrayal is what we deserve until we stand up for our rights.

    In comparison to persuasion, bribery and coercion are pathetic cop outs but causes for alarm became public institutions of coercion and criminal enterprises one premediated crisis, reaction, and solution at a time.

    Unfortunately, a lot of people don’t pay attention. The guards are worse than the inmates. The warden is worse than the guards. People inside and outside the prison are easier to fool than convince them they have been fooled.

    It’s the nature of the state to grow and grow and consume
    the civil society unless the inmates breakout. Life, liberty, and the pursuit of happiness means being able to question authority, presumptions, and protocols from one fresh perspective after another because models, templates, and people systems make the difference.

    So many people don’t question authority, presumptions, and protocols, the Catholic Church created propaganda but no matter our wonderful the guards and warden are, terrible things happen to the inmates when the lights are turned out. Democide, the state killing its own citizens, is by far the greatest mass killer of all time but humor is tragedy plus time and distance. The persistent and persuasive inmates always end up winning.

    Yours, mine, and everyone’s else’s true savior is pro-honest money, small localized governance, for low taxes, pro-free market, pro-gun, pro-life, pro-calling you a butt head………if your religion is something else, I agree it should not be funded.

  6. For the sake of the maintenance of the purity of the faiths, no faith should receive any monetary or other government support of any kind. Those religious organizations that would receive such assistance are putting their own faiths in jeopardy if a government or unscrupulous politicians would begin to use such assistance to force certain actions by religious organizations – such as kickbacks or statements of support of other policies not completely upheld by their religion’s teachings, etc. – in order to continue to receive such government benefits.

    The separation of church and state was not just for the benefit of government, but rather, also, for the independence and purity of the religious organizations.

    On the flip side, if “religious liberty” to receive government funds would apply to this one Christian church, then the government should provide equity by providing such funds to synagogues, mosques, native American religious groups, the Jains, the Baha’is, the Druids, the Scientology folks, Hindus, Buddhists, and on…

    So, if your religious organization wants a new playground, or a gym, or improved parking lot, or books, etc., etc., do a fund drive. If you don’t get the funds, then maybe God didn’t want you to have it. Try just worshiping God – it’s free.

  7. If religious schools want tax payer funds, they should start paying their own taxes and adhere to state education requirements.

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