When can public money go to religious institutions?

The Supreme Court has two opportunities to answer questions about when taxpayer dollars can go to religious institutions.  The Court has already agreed to review an Eighth Circuit Court of Appeals decision in Trinity Lutheran Church of Columbia v. Pauley.  Trinity Church operates a daycare facility, which includes a playground used by students and other children in the surrounding community.  Seeking to make the playground safer by installing a rubber surface made from recycled tires, the Church applied for a grant from Missouri’s Scrap Tire Grant Program.  Although the Program was available to all nonprofit organizations, Trinity’s application was denied for one reason — because it is a church.  The Eighth Circuit Court of Appeals held that denial of the application does not violate either the Free Exercise Clause or the Equal Protection Clause of the U.S. Constitution.  The question before the Supreme Court is whether “the exclusion of churches from an otherwise neutral and secular aid program” violates those clauses.

The second case is before the Court on three separate petitions for certiorari.  Doyle v. Taxpayers for Public Education (the lead case), challenges the constitutionality of a Colorado school district scholarship program that would provide monetary scholarships to parents whose children want to attend private schools.  Some of those private schools are operated by religious institutions.  The Colorado Supreme Court struck down the scholarship program, holding that it violates a state constitutional provision prohibiting the State from funding “anything in aid of any church or sectarian society, or for any sectarian purpose.”   The question before the U.S. Supreme Court is whether this provision violates the Religion Clauses or the Equal Protection Clause of the federal constitution.  We expect the Court to decide whether to hear this case, or not, within the next couple of weeks.

Trinity Lutheran and Doyle appear to raise the same question:  Does the federal constitution allow generally-available and religiously-neutral government aid programs to provide public money to religious institutions?  But there are important factual and legal differences between the two cases.  The critical legal difference traditionally has been based on who makes the choice to provide public money to a religious institution.  In Trinity Lutheran, the government decides who receives grants; there is no intermediary between the government and the church.  That case provides an example of direct aid to institutions. The Colorado school scholarship program (Doyle), however, provides aid to students and parents.  The students and parents decide whether to spend the money at a religious school or a secular school.  The Court may decide that this factual difference requires the two cases be heard and decided separately.

The Institute for Justice (IJ), counsel for some of the petitioners in Doyle, recently filed a supplemental brief, asking the Court to grant the petition and hear it on the same day as Trinity Lutheran, but not to consolidate the cases.   It will be interesting to see what the Court does.  PLF filed an amicus brief in support of certiorari in Doyle, and, in April, will file an amicus brief on the merits in support of Trinity Lutheran.