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«NO. 15-577 In the Supreme Court of the United States TRINITY LUTHERAN CHURCH OF COLUMBIA INC., Petitioner, v. SARA PARKER PAULEY, Director, Missouri ...»

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NO. 15-577

In the

Supreme Court of the United States







Missouri Department of Natural Resources,



On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit










580 Massie Road ANDREW N. FERGUSON Charlottesville, VA 22903 BANCROFT PLLC 500 New Jersey Ave., NW JAMES M. LYONS Seventh Floor L. MARTIN NUSSBAUM Washington, DC 20001 ERIC V. HALL (202) 234-0090 LEWIS ROCA pclement@bancroftpllc.com ROTHGERBER


One Tabor Ctr., Ste. 3000 1200 17th Street Denver, CO 80202 Counsel for Amici Curiae April 21, 2016







I.  The Eighth Circuit’s Reading Of Locke Forces Governments Either To Discriminate Based On Religion Or To Withhold Generally Available Benefits

A.  The Religion Clauses Demand Government Neutrality Between Religion and Nonreligion

B.  Douglas County Demonstrates the Difficult Position in Which Departures from Neutrality Have Placed State and Local Governments

1. The Choice Scholarship Program.......... 7

2. Litigation in the Colorado State Courts

3. Douglas County’s Petition for a Writ of Certiorari

II.  The Eighth Circuit’s Decision In Trinity Lutheran Is Wrong, And Its Extension To Indirect Aid Programs Approved By This Court Is Even More Wrong

A.  The Eighth Circuit’s Decision Is Deeply Flawed and Should Be Reversed

–  –  –

B.  The Colorado Supreme Court’s Invalidation of an Indirect Aid Program Materially Indistinguishable from the Program Upheld by this Court in Zelman Underscores the Threat to Neutrality....... 23  III.  Pervasive Anti-Catholicism Underlies Both Blaine Amendments

A.  The Federal Blaine Amendment................ 28  B.  The Blaine Amendments in the States..... 32 

1. Colorado’s Blaine Amendment............ 32

2. Missouri’s Blaine Amendment............ 34 CONCLUSION



Cases  Agostini v. Felton, 521 U.S. 203 (1997)

Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006)

Badger Catholic, Inc. v. Walsh, 620 F.3d 775 (7th Cir. 2010)

Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236 (1968)

Bd. of Educ. of Sch. Dist. No. 1 in City & Cty. of Denver v. Booth, 984 P.2d 639 (Colo. 1999)

Bush v. Holmes, 886 So. 2d 340 (Fla. Dist. Ct. App. 2004).............. 20 Bush v. Holmes, 919 So. 2d 392 (Fla. 2006)

Church of Lukumi Babalu Aye, Inc.

v. City of Hialeah, 508 U.S. 520 (1993)

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)

Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008)

Columbia Union Coll. v. Oliver, 254 F.3d 496 (4th Cir. 2001)

Epperson v. Arkansas, 393 U.S. 97 (1968)

iv Eulitt ex rel. Eulitt v. Maine, 386 F.3d 344 (1st Cir. 2004)

Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1 (1947)

Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001)

Hunter v. Underwood, 471 U.S. 222 (1985)

Johnson v. California, 543 U.S. 499 (2005)

Johnson v. United States, 135 S. Ct. 2551 (2015)

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)

Larsen v. Valente, 456 U.S. 228 (1982)

Locke v. Davey, 540 U.S. 712 (2004)

Luetkemeyer v. Kaufmann, 364 F. Supp. 376 (W.D. Mo. 1973).................. 14, 16 Luetkemeyer v. Kaufmann, 419 U.S. 888 (1974)

Mitchell v. Helms, 530 U.S. 793 (2000)

Mueller v. Allen, 463 U.S. 388 (1983)

NLRB v. Catholic Bishop of Chi., 440 U.S. 490 (1979)

v Norwood v. Harrison, 413 U.S. 455 (1973)

Palmore v. Sidoti, 466 U.S. 429 (1984)

Renne v. Geary, 501 U.S. 312 (1991)

Romer v. Evans, 517 U.S. 620 (1996)

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)

Taxpayers for Pub. Educ.

v. Douglas Cty. Sch. Dist., 351 P.3d 461 (Colo. 2015)

Taxpayers for Pub. Educ.

v. Douglas Cty. Sch. Dist., 356 P.3d 833 (Colo. App. 2013)

Taxpayers for Pub. Educ.

v. Douglas Cty. Sch. Dist. RE-1, No. 11cv4427 (Colo. Dist. Ct. Aug. 12, 2011)

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002)

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)

Widmar v. Vincent, 454 U.S. 263 (1981)

Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481 (1986)

vi Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993)

Constitutional Provisions & Statute  Colo. Const. art. IX, §7

Colo. Const. art. IX, §15

Mo. Const. art. I, §7

Mo. Const. art. IX, §8

School Finance Act of 1994, Colo. Rev. Stat. §22-54-101

Other Authorities  Archdiocese of St. Louis, 1843-1903: The Immigrant Church, http://bit.ly/1SsZ854

Richard A. Baer, Jr., The Supreme Court’s Discriminatory Use of the Term “Sectarian,” 6 J.L. & Pol. 449 (1990)

Thomas C. Berg, Response, Religious Choice and Exclusions of Religion, 157 U. Pa. L. Rev.

PENNumbra 100 (2008)

Boulder County News, Jan. 21, 1876

4 Cong. Rec. 205 (1875)

vii Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J.L. & Pub. Pol’y 551 (2003)

Pet., Douglas Cty. Sch. Dist.

v. Taxpayers for Public Educ.

(No. 15-557) (U.S. Oct. 28, 2015)

Kyle Duncan, Secularism’s Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493 (2003)

IV Encyclopedia of the History of St. Louis (W. Hyde & H.L. Conard eds., 1899)

Noah Feldman, Non-Sectarianism Reconsidered, 18 J.L. & Pol. 65 (2002)

Richard W. Garnett, The Theology of the Blaine Amendments, 2 First Amend. L. Rev. 46 (2003)

Frederick Mark Gedicks, Reconstructing the Blaine Amendments, 2 First Amend. L. Rev. 85 (2003)

Charles L. Glenn, The American Model of State and School (2012)

Steven K. Green, The Bible, the School, and the Constitution (2012)

viii Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38 (1992)

Philip C. Hamburger, Separation of Church and State (2002).......... 30, 31 Donald W. Hensel, Religion and the Writing of the Colorado Constitution, 30 Church Hist. 349 (1961)....... 33, 34 J. Michael Hoey,

Missouri Education at the Crossroads:

the Phelan Miscalculation and the Education Amendment of 1870, 95 Mo. Hist. Rev. 372 (2001)

John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279 (2001).. 28, 29, 30, 31

I Journal:

Missouri Constitutional Convention of 1875 (I. Loeb & F. Shoemaker eds., 1920)

II Journal:

Missouri Constitutional Convention of 1875 (I. Loeb & F. Shoemaker eds., 1920)

Douglas Laycock, Theology Scholarships, the Pledge of

Allegiance, and Religious Liberty:

Avoiding the Extremes but Missing the Liberty, 118 Harv. L. Rev. 155 (2004)

Christopher C. Lund, The New Victims of the Old AntiCatholicism, 44 Conn. L. Rev. 1001 (2012)........... 29 ix Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (2000).............. 28, 29 N.Y. Trib., July 8, 1875

Proceedings of the Constitutional Convention Held in Denver, December 20, 1875 to Frame a Constitution for the States of Colorado (1907)

Rocky Mountain News, Jan. 11, 1876

Rocky Mountain News, Mar. 17, 1876

Joseph P. Viteritti, Blaine’s Wake: School Choice, The First Amendment, and State Constitutional Law, 21 Harv. J.L. & Pub. Pol’y 657 (1998)

Cleland B. Welton II, Note, The Future of Locke v. Davey, 96 Va. L. Rev. 1453 (2010)



The Douglas County School Board (“Board”) is charged by Article IX, §15 of the Colorado Constitution with “guid[ing] and manag[ing] both the action and practice of instruction as well as the quality and state of instruction” in the Douglas County School District (“District,” or, together with the Board, “Douglas County”). Bd. of Educ. of Sch. Dist. No. 1 in City & Cty. of Denver v. Booth, 984 P.2d 639, 648 (Colo. 1999).

In fulfillment of that charge, Douglas County established a comprehensive set of reforms designed to improve educational opportunity for Douglas County students that included a scholarship program to provide tuition assistance for qualified students to attend area private schools. The scholarships were both generally available and religiously neutral: Any Douglas County student meeting a one-year residency requirement could apply, and any qualifying student was free to use the scholarship money to attend a participating private school of his or her choice. No money went to any private school except by virtue of the independent decisions of students and parents.

Nevertheless, because some of the participating private schools are religiously affiliated, the Supreme

Pursuant to this Court’s Rule 37.6, amici curiae state that no

counsel for any party authored this brief in whole or in part and that no entity or person, aside from amici curiae, its members, and its counsel, made any monetary contribution toward the preparation or submission of this brief. Pursuant to this Court’s Rule 37.3, amici have obtained consent from respondent;

petitioner has consented to the filing of all amicus briefs in a letter on file with the Clerk’s office.

Court of Colorado enjoined the program on the ground that it violated Article IX, §7 of the Colorado Constitution—the Colorado Blaine Amendment. That provision has been in the Colorado Constitution since statehood and, true to its anti-Catholic roots, broadly prohibits the State from “mak[ing] any appropriation, or pay[ing] from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose.” Douglas County filed a petition for a writ of certiorari on October 28, 2015, arguing that the Colorado Supreme Court’s decision violated the Religion Clauses of the First Amendment and the Fourteenth Amendment. That petition is apparently being held for this case. Thus, although the Douglas County case, which involves an indirect aid program, is even more problematic, the Court’s resolution of this case will materially affect Douglas County. Indeed, if the Court reverses the Eighth Circuit’s decision here, the Court should grant, vacate and remand Douglas County so that the federal guarantee of religious neutrality can be restored in Colorado.


The Eighth Circuit construed this Court’s decision in Locke v. Davey, 540 U.S. 712 (2004), to allow states with broadly worded Blaine Amendments to discriminate against religion in the administration of otherwise neutral and generally available government aid. In addition to improperly excluding religious persons and institutions from participating in government aid programs, the Eighth Circuit’s decision puts local governments in an intolerable bind.

Pursuant to state law, a local government must either deviate from the federal guarantee of neutrality and discriminate against religious persons and institutions in conferring benefits, or defeat sound governmental objectives by withholding all aid to avoid the compelled discrimination. This is precisely the Hobson’s choice created by the Colorado Supreme Court’s decision in Douglas County, which held that Douglas County’s neutral scholarship program violated the Colorado Blaine Amendment because some religiously affiliated schools would indirectly receive funding as a result of the intervening decisions of parents and students. The federal Constitution allows states and localities to accomplish legitimate objectives while steering a course of neutrality. It does not require governments to choose between discriminating or withholding benefits.

The Eighth Circuit’s decision was flatly wrong.

Locke authorized a limited departure from the rule of neutrality only in the very specific context of funding for the vocational theological training of clergy, and solely because of the unique Establishment Clause concerns such funding creates. Those concerns simply are not present in the context of funding to improve the safety of children’s playgrounds.

The Colorado Supreme Court’s application of Locke was even more erroneous. The scholarship program at issue in Douglas County involved only indirect aid in a context that this Court has already considered and held to be neutral and permissible. As in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), no money finds its way to any private school under the scholarship program except as a result of the intervening and truly independent decisions of parents and students. This Court has already made clear that such a program raises no Establishment Clause concerns. The threat to neutrality instead comes from misguided decisions that would force a school district to sacrifice educational objectives and narrow educational opportunity by excluding religious schools.

Finally, both the Colorado and Missouri Blaine Amendments share discriminatory, anti-Catholic origins that make their contemporary use to compel religious discrimination particularly unacceptable.

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