Some Issues of Religion In Tomorrow's Down-Ballot Contests

Religion has not dominated very many down-ballot contests in tomorrow's election.  However for those interested in religious liberty and church-state issues, there are several contests to watch. [Thanks to Don Byrd at Blog From the Capital for keeping an eye on these down ballot issues.]

1. Oklahoma State Question 790 asks voters to repeal provisions in Oklahoma's state constitution (Art. 2, Sec. 5) that prohibits the use of public funds or property for the direct or indirect benefit of any religion or religious institution.  This section of the state constitution was the basis for the Oklahoma Supreme Court to order removal of a Ten Commandments monument.
   
2. Missouri Constitutional Amendment 3 would increase the tax on cigarettes to create an Early Childhood Health and Education Trust Fund that will make grants to both public and private entities.  Part of the amendment excludes grant funds distributed from the Trust Fund from the restrictions of Missouri Constitution Art. IX, Sec. 8 which prohibits use of public funds to support any religious creed, sectarian purpose or religious educational institution. The proposed Amendment also bars use of trust funds for any abortion services not necessary to save the life of the mother.
   
3. The conservative Christian religious beliefs of one of the candidates for Justice of the Montana Supreme Court-- attorney and law professor Kristen Juras-- has become a campaign issue. (See prior posting.)
   
4. In a contest for state legislature in Ohio, Casey Weinstein who is running in House District 37 (Summit County), has been challenged over a lawsuit filed on his behalf when he was an Air Force Academy cadet. According to the Cleveland Plain Dealer, an ad sent out by state Republican Party focuses on a lawsuit in which Weinstein was one of the plaintiffs objecting to alleged Christian proselytizing at the Air Force Academy. Weinstein's father Mikey Weinstein is head of the Military Religious Freedom Foundation that filed the suit.
   
5. The result of the state Attorney General contest in Missouri may impact a major free exercise case currently before the U.S. Supreme Court-- Trinity Lutheran Church v. Pauley. At issue is the denial-- because of Missouri's Blaine Amendment-- of a state Playground Scrap Tire Surface Material Grant that would have allowed a church to resurface a playground at its day care and preschool facility. The state, represented by the current Democratic state Attorney General Chris Koster (who is now a candidate for governor), is defending the denial. However Republican Attorney General candidate Josh Hawley sides with the church and filed an amicus brief in support of of it on behalf of a Pentecostal Christian denomination. (US Law Week, Nov. 2, reports).

Nevada Supreme Court Upholds School Choice Plan, But Invalidates Appropriations For It

In Schwartz v. Lopez, (NV Sup. Ct., Sept. 29, 2016), the Nevada Supreme Court gave a mixed victory to opponents of the state's school choice program.  The state's Educational Savings Account program is the most extensive in the country.  It allows parents of any child who has attended a public or charter school for at least 100 days to receive into an educational savings account a portion of the state's public school funding for use at an eligible alternative private (including religious) school. (See prior posting.) The Court held that the plan does not violate Art. 2, Sec. 11 of the Nevada Constitution that requires the legislature to provide for a uniform system of common schools. Nor does it violate Art. 11, Sec. 10 that prohibits use of public funds for sectarian purposes since the funds cease being public funds when deposited in a parent's educational savings account.

The Court however held that no valid appropriation had been made by the legislature to fund the Educational Savings Account program.  The state is using funds appropriated for public schools. Therefore the Court remanded to the trial courts the two cases under review ordering the issuance of declaratory judgments and permanent injunctions against implementing the Educational Savings Account program until the legislature makes a valid appropriation to cover its costs.

Justices Douglas and Perry dissented in part contending that the Court should not have reached the issue of whether the plan violates Art. 11, Sec. 10's prohibition on use of public funds for sectarian purposes. Las Vegas Sun reports on the decision.

Preliminary Injunction Denied In Challenge To Grants To Churches

Americans United reported Monday that a Massachusetts state trial court has denied a preliminary injunction in Caplan v. Town of Acton, Massachusetts, a suit challenging the town's approval of three Community Preservation grants to restore core facilities and religious imagery of two active local churches. (See prior posting.) Plaintiffs contended that the grants violate the Anti-Aid provision of the Massachusetts constitution.

Suit Alleges Grants For Church Preservation Projects Violate Massachusetts No-Aid Provision

A suit was filed yesterday against the town of Acton, Massachusetts by 13 of the town's residents and taxpayers challenging the town's approval of three Community Preservation grants to restore core facilities and religious imagery of two active local churches. The complaint (full text) in Caplan v. Town of Acton, Massachusetts, (MA Super. Ct., filed 7/7/2016) alleges that the grants violate Article XVIII, Section 2 of the Massachusetts Constitution that prohibits use of public funds "for the purpose of founding, maintaining or aiding any church, religious denomination or society." Grants to Acton Congregational Church funded a master plan for historic preservation of the 170-year old church building and for repair of major stained glass window's in the church's building. A grant to the South Acton Congregational Church funded roof repairs. Americans United issued a press release announcing the filing of the lawsuit. Boston Globe reports on the lawsuit.

Amicus Briefs In Support of Petitioner In Trinity Lutheran Case Are Now Available

Next term, the U.S. Supreme Court will hear oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Pauley challenging Missouri's exclusion under its "no aid" clause of churches from its secular grant program for playground improvements. (See prior posting.) The deadline for amicus briefs in support of petitioner has now passed, and 25 briefs in support of Trinity Lutheran Church have been filed, along with one amicus brief in support of neither side. Links to all of the amicus briefs are available from the SCOTUSblog case page for the case.  Respondent's brief is not due until June 28, with amicus briefs supporting respondent due a week after that.

Oklahomans Will Vote On Repeal of Blaine Amendment

The Oklahoma legislature last Thursday gave final passage to SJR 72 (full text) (legislative history), referring to the voters of the state a proposed constitutional amendment to eliminate the state's Blaine Amendment.  The amendment would repeal Art. 2, Sec. 5 of the Oklahoma constitution that prohibits public funds or property from being used for sectarian or religious purposes. Legislative passage came in reaction to a state supreme court ruling last year that, in reliance on Art. 2, Sec. 5, ordered removal of a Ten Commandments monument from the statehouse grounds. As reported by The Oklahoman, an ACLU spokesman said that if the ballot measure passes, the ACLU would likely file a federal challenge to the Ten Commandments monument.

Oklahoma Supreme Court Upholds Voucher Plan Over Blaine Amendment Objections

In Oliver v. Hofmeister, (OK Sup. Ct., Feb. 16, 2016), the Oklahoma Supreme Court upheld the constitutionality of the state's voucher program that permits children with disabilities to attend any private school of their choice to obtain special education services, whether the school is sectarian or non-sectarian.  The Court held that the program does not violate the "no aid" clause of Oklahoma's Constitution, Art. II, Sec. 5 (Oklahoma's Blaine Amendment), saying in part:

Because the parent receives and directs the funds to the private school, sectarian or non-sectarian, we are satisfied that the State is not actively involved in the adoption of sectarian principles or directing monetary support to a sectarian institution through this scholarship. When the scholarship payment is directed to a sectarian private school it is at the sole and independent choice and direction of the parent and not the State. The scholarship funded through the Act has no bearing on state control of churches. We are convinced that the scholarships funded by the Act have no adverse impact on the ability of churches to act independently of state control and to operate separately from the state.

Tulsa World, reporting on the decision, says that in 2014-15, 61% of the the $2.5 million total vouchers went to religious schools.

"No-Aid" Clause Not Violated By Faith-Based Social Service Contracts

In Center For Inquiry , Inc. v. Jones, (FL Cir. Ct., Jan. 20, 2016), a Florida state trial court upheld against constitutional challenge state contracts with religious organizations for substance abuse treatment and transitional housing for former inmates.  Plaintiffs contended that the contracts violate Art. I, Sec. 3 of the Florida Constitution which provides in part:

No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.

The court disagreed, saying:

The No-Aid provision permits government contracts with religious organizations if the funds are not spent "in aid of" religion but rather to further the state's secular goals.... [T]he Program exists to promote the State's anti-recidivism and anti-addiction efforts, not religion. The Program is not "significantly sectarian": it permits some religious content only to the extent the content is offered in a nondiscriminatory and wholly optional and voluntary fashion. Further, the record shows that the program does not indoctrinate, require participation in religious ritual, or favor any one religion over another.

Becket Fund issued a press release announcing the decision.

Supreme Court Grants Review In Missouri Blaine Amendment Case

The U.S. Supreme Court today granted certiorari in Trinity Lutheran Church v. Pauley, (Docket No. 15-577, cert. granted 1/15/2016) (Order List).  In the case, the the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, rejected arguments that Missouri's Blaine Amendments violate the U.S. Constitution's 1st and 14th Amendments. At issue was the denial by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would have allowed it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.) The petition for certiorari (full text) framed the Question Presented as follows:

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

SCOTUSblog's case page has links to all the briefs.

New Mexico Supreme Court Files Amended Opinion Again Striking Down Textbook Loan Program

Last week, the New Mexico Supreme Court denied a motion for a rehearing in its recent Blaine Amendment decision (see prior posting) invalidating the state statute that provides for the loan of secular textbooks to private and parochial school students, but substituted a new opinion for the one handed down last month. The primary change in its new opinion in Moses v. Skandera, (NM Sup. Ct., Dec. 23, 2015), is the addition of paragraphs 28 and 29 rejecting the argument that since funding for the textbook program comes from payments to the state under the federal Mineral Lands Leasing Act, this preempts state constitutional limits.  The court said in part:

The MLLA has neither expressly nor impliedly preempted the application of Article XII, Section 3 because restricting funds appropriated for educational purposes to public schools is not incompatible with the purposes announced in the MLLA. Thus, Intervenors’ argument that funds from the MLLA that are used for the Instructional Material Fund are federal funds which are “not subject to state constitutional limitations” is without merit.

New Mexico Supreme Court Invalidates State Textbook Loans To Private School Students

In Moses v. Skandera, (NM Sup. Ct., Nov. 12, 2015), the New Mexico Supreme Court in a unanimous opinion upheld a state constitutional challenge to the New Mexico Instructional Material Law.  That statute allows the state to lend secular textbooks to private and parochial school students.  New Mexico's Constitution, Art. XII, Sec. 3 (a Blaine amendment provision) provides in part:

no ... funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school, college or university.

Reversing the state court of appeal (see prior posting), the state Supreme Court held that this constitutional provision is more restrictive that the state or federal Establishment Clause and bars textbook loans:

Private schools benefit because they do not have to buy instructional materials with money they obtain by tuition or donations and they can divert such money to other uses in their schools. Consistent with the rules of statutory construction and the majority of jurisdictions interpreting similar state constitutional provisions, the IML violates Article XII, Section 3 because it provides support to private schools

Albuquerque Journal reports on the decision.

8th Circuit Upholds Missouri's Blaine Amendments Against 1st and 14th Amendment Attack

In Trinity Lutheran Church of Columbia, Inc.v. Pauley, (8th Cir., May 29, 2015), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, rejected arguments that Missouri's Blaine Amendments violate the free exercise, establishment and equal protection clauses of the federal Constitution. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would allow it to resurface a playground at its day care and preschool facility on church premises. In refusing the grant, the Department pointed to Missouri Constitution, Art. I Sec. 7, that prohibits public funds from being spent "in aid of any church, section or denomination of religion." The majority said in part:

Trinity Church seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church. To prevail, Trinity Church must clear a formidable if not insurmountable hurdle, what appears to be controlling adverse precedent.

Judge Gruender dissented, saying that Trinity Church has sufficiently pleaded a Free Exercise violation.

Suit Challenges County Resolution Recognizing Christian Pregnancy Services Organization

The ACLU of Northern California earlier this week announced the filing of a state court lawsuit against the county of Calaveras, California on behalf of several residents and taxpayers who object to a resolution passed by the county Board of Supervisors.  The Resolution (full text) as passed in July 2014 recognizes the local Door of Hope pregnancy center "for serving the women of Calaveras County and helping to save the lives of our most vulnerable children." The complaint (full text) in Lavagetto v. County of Calaveras, (CA Super. Ct., filed 2/13/2015) objects to language in the resolution recognizing Door of Hope, among other things, for "enlighten[ing] and strengthen[ing]the lives of women and young women in Calaveras County by inviting them to test and see for themselves the many blessings that can come from living the teachings of Christ." Plaintiffs contend that the resolution favors one religon over another in violation of provisions in the California constitution which bar the establishment of religion and the expenditure of public funds to aid any religious sect.

New Mexico Court Upholds Furnishing Instructional Materials To Private and Religious Schools

In Moses v. Skandera, (NM App., Oct. 26, 2014), a New Mexico appellate court upheld New Mexico's Instructional Materials Law which provides for the state purchase of books and instructional materials for students in public and private schools, including religious schools.  The court rejected claims that the law violated various provisions of the New Mexico Constitution, including Art. XII, Sec. 3 which prohibits funds appropriated for educational purposes from being used to support any sectarian, denominational or private school. Becket Fund, in a press release, called the decision "a blow to anti-religious Blaine Amendments found in many State constitutions."  AP reports on the decision.