Advisory Committee to the U.S. Commission on Civil Rights Releases Report on Colorado’s Blaine Clauses

A newly released report entitled “The Colorado Constitution’s No Aid To Sectarian Institutions Clause and its Impact on Civil Rights,” examines the origins of the Colorado Constitution’s No Aid Clause (known as Blaine Amendments), and the historical and modern applications.

The report was authored by members of the Colorado Advisory Committee to the U.S. Civil Rights Commission. Independence Institute’s Research Director, David Kopel, serves on the committee as the Vice-Chair.

Nineteenth century Blaine clauses banned public dollars from supporting sectarian-religious organizations which society viewed unfavorably, including Catholicism, Judaism, Mormonism, and Islam. Mainstream Protestant denominations were not considered to be sectarian.

The report details how the clause impacts civil rights in education, students with disabilities, higher education scholarships, and lists eight state-funded voucher-like programs that provide funding for programs at religious institutions.

There were two 2017 U.S. Supreme Court cases on Blaine. In Trinity Lutheran Church of Columbia, Inc. v. Comer, a case regarding a religious preschool being denied grant funding for playground surface improvements, the court held that excluding churches and religious institutions from a neutral aid program violates the Free Exercise Clause of the First Amendment.

In Doyle v. Taxpayers for Public Education, a case concerning the Douglas County School Choice Scholarship Pilot Program, the U.S Supreme Court vacated the Colorado Supreme Court’s ruling which declared school vouchers to religious schools were unconstitutional. The U.S Supreme Court remanded the Douglas County case back to the Colorado Supreme Court to reconsider in light of the decision in the Trinity Lutheran case. In regard to the Douglas County case, the report commented “There does not appear to be any equitable reason why Douglas County families have been treated differently pursuant to the No Sectarian Aid Clause, compared to other families that receive voucher-like aid in various other Colorado educational programs.”

The report also stated “Today, the No Sectarian Aid Clause has been interpreted and applied so that it creates little impediment to government aid to religious schools, as long as the aid is not in the form of direct government support for the operation of a religious school system.” These findings are similar to the position held by the U.S Supreme Court’s ruling in Trinity Lutheran; the Free Exercise Clause was created not to prohibit funding towards religious institutions, but rather ensure all funding is neutral, and not discriminatory towards religious or non-religious entities.

Unfortunately, the U.S. Supreme Court did not make its own decision on the constitutionality of the first of its kind school choice program. Douglas County voters elected new school board members who ended the Choice Scholarship Pilot Program. Therefore, the Colorado court never reconsidered the case.

Works from Independence Institute on Blaine clauses include a Federalist Society Review article by Rob Natelson, Senior Fellow, Constitutional Jurisprudence and an issue paper by Ross Izard, then Senior Education Policy Analyst.