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.