State constitutional Blaine Amendments, which prohibit the expenditure of state funds on religious educational institutions, have for decades impeded educational choice programs This may be changing. The United States Supreme Court’s decision in Trinity Lutheran v. Comer opened the door for school choice programs to survive challenge under state Blaine Amendments. Both the majority opinion of six justices and the dissenting opinion of two justices disclaim any conclusion concerning any programs beyond the particular program at issue in Trinity Lutheran. However, two concurring justices signal the broader implications of the decision, as does the Court’s action in vacating and remanding two pending decisions involving Blaine Amendments in the Colorado and New Mexico Constitutions. Given the prevalence of Blaine Amendments in state constitutions and the inhibiting effect given to some of those provisions by their state supreme courts, Trinity Lutheran’s potential to lead to a limiting change in the interpretation of those Blaine Amendments could profoundly affect educational choice programs.
This article will first explain what state Blaine Amendments are and why they came to be in so many state constitutions. Far from being a benign form of protection for secular public schools, Blaine Amendments were enacted to deny aid to Catholic schools at a time when public schools were generically Protestant. Then, this article will discuss how differing interpretations of state Blaine Amendments affect educational choice programs. In doing so, this article will categorize the current interpretations of those provisions into three types: (1) those that permit educational choice programs, (2) those that inhibit educational choice programs, and (3) those that give insufficient guidance to place the interpretation into either of the first two categories. This article will next describe the efforts to get cases like Trinity Lutheran to the United States Supreme Court, including two prior cases addressing state Blaine Amendments from Missouri and Washington This will include a particular focus on 2004’s Locke v. Davey, which involved an educational choice program. This article will then provide detailed discussion of Trinity Lutheran itself, and end with a consideration of the decision’s likely effect on future application of state Blaine Amendments. This article concludes that Trinity Lutheran has the potential to eliminate state Blaine Amendments as impediments to educational choice programs.