In its biggest religious freedom case of the year, the US Supreme Court set a precedent for school choice decisions—but also didn’t.
While deciding in a 7–2 vote that Missouri was wrong to exclude Trinity Lutheran Church from state funding for playground safety simply because it is a religious institution, the court offered two different guides for the future.
“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination,” reads a footnote in the decision, seeming to set the narrowest precedent in history.
At the same time, the court remanded two school choice cases to the lower courts for “further consideration in light of” the Trinity Lutheran ruling. In one—actually a set of three linked cases—the Colorado Supreme Court found that a voucher program was illegal because it provided state funding to religious schools. In the other, the New Mexico Supreme Court said religious schools can no longer participate in a state-funded textbook lending program.
“Why would the Supreme Court remand cases if [the ruling] had no bonding effect at all on any of the cases, or is irrelevant to them?” asked Marc DeGirolami, who teaches law and religion at St. John’s University School of Law. “It does suggest there is receptiveness in the court to a little bit more lenience with respect to some of these funding issues.”
Sending a case back to the state courts doesn’t mean the judges have to rule differently, but they might have to rule on different grounds, said Thomas Berg, a church-state expert at the University of St. Thomas law ...1