After Trinity Lutheran (2017), can Idaho still categorically exclude religiously affiliated schools and universities from generally available state programs like work-study and tax-free bonds under Idaho's Blaine Amendment?
Subject
Whether the U.S. Supreme Court's 2017 decision in Trinity Lutheran Church v. Comer alters Idaho's "Blaine Amendment" (Idaho Const. art. IX, § 5) and Idaho AG opinions interpreting it, and whether religiously affiliated institutions like Northwest Nazarene University may now participate in state programs (work-study, IHFA tax-free bonds, Title IV-E stipends, and similar benefits).
Currency note
This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. In particular, the U.S. Supreme Court's later decisions in Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022) further developed the Trinity Lutheran framework and likely strengthened the conclusions reached here. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Plain-English summary
Representative Rick Youngblood asked AG Lawrence Wasden five questions about how the U.S. Supreme Court's 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, affects Idaho's "Blaine Amendment" and religiously affiliated institutions' access to state benefits.
Idaho's Blaine Amendment is Article IX, Section 5 of the Idaho Constitution. It bars any state, county, city, township, school district, or other public corporation from making "any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian or religious society, or for any sectarian or religious purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever." The provision is stricter than the federal Establishment Clause. About 38 states have similar provisions, dating to a failed 1875 federal amendment by Rep. James Blaine.
In Trinity Lutheran, the Supreme Court struck down Missouri's categorical exclusion of churches from a state grant program for playground resurfacing. The Court held that "denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest 'of the highest order.'" Missouri's interest in maximum church-state separation under its own Blaine Amendment was not enough.
The critical distinction in Trinity Lutheran was between exclusion based on what an applicant is (religious identity) versus what an applicant proposes to do with the funds (e.g., train clergy in Locke v. Davey, 540 U.S. 712 (2004), where the funding restriction survived). Status-based exclusion gets strict scrutiny; use-based exclusion may be permissible.
AG Wasden's five conclusions:
1. Trinity Lutheran limits Idaho's Blaine Amendment. Categorical denial of an otherwise publicly available benefit to a religiously affiliated applicant solely because of religious identity is now constitutionally suspect. There is "play in the joints" between Establishment Clause limits and Free Exercise Clause requirements, and the amount of "play" is now smaller for status-based exclusions.
2. Idaho's other relevant constitutional provisions can be harmonized with the Blaine Amendment. Article I, Section 4 (religious liberty) and Article XXI, Section 19 (no denial of personal rights based on religion) are essentially free-exercise provisions; they coexist with Article IX, Section 5's establishment-clause-style restriction, but limit each other. Article XXI, Section 20 simply confirms Idaho's adoption of the U.S. Constitution.
3. The 1992 AG Guideline on tuition tax credits for private religious K-12 schools is superseded. That guideline concluded such credits were probably unconstitutional under Article IX, Section 5. Zelman v. Simmons-Harris, 536 U.S. 639 (2002), already permitted such programs under federal law as indirect aid through parental choice. After Trinity Lutheran, an Idaho-Constitution exclusion of religious-school students from such a credit would face strict scrutiny.
4. The other Idaho constitutional sections do not alter past AG opinions on the Blaine Amendment.
5. Religiously affiliated institutions' access to state programs depends on a four-factor test:
- Is the program publicly available?
- Is the religious applicant being excluded for who/what they are versus how the funds would be used?
- Is the aid direct or indirect?
- Is the student or the institution the primary intended beneficiary?
Applying that test to the specific programs Rep. Youngblood asked about:
- On-campus work study: Probably must include religious institutions. The program benefits the student (indirect aid to the institution); excluding the institution would be status-based.
- Tax-free bonds through Idaho Housing and Finance Association: Probably can still exclude religious institutions, because the bond benefit is direct to the institution and could fund religious activities. The AG cited Freedom From Religion Foundation v. Morris County (N.J. 2018), in which the New Jersey Supreme Court upheld exclusion of churches with active congregations from historic preservation grants for buildings used for religious worship.
- Title IV-E social work stipends: Probably must include students at religious institutions. The aid primarily benefits the student, the funds are not used for religious mission, and the exclusion would be status-based.
The AG's answer also flagged the post-Trinity Lutheran remand of Taxpayers for Public Education v. Douglass County School District (Colorado school-voucher case), where the U.S. Supreme Court vacated a Colorado Supreme Court Blaine-Amendment ruling and remanded "in light of Trinity Lutheran." That signal supported reading Trinity Lutheran broadly.
Common questions
Q: What is a "Blaine Amendment"?
A state constitutional provision barring public funds from going to religious schools or institutions. Named for Rep. James G. Blaine, who proposed a similar federal amendment in 1875. The federal version failed, but most states adopted similar language. Idaho's is at Article IX, Section 5.
Q: How is Idaho's Blaine Amendment different from the federal Establishment Clause?
It is broader. The federal Establishment Clause bars government endorsement of religion. Idaho's Article IX, Section 5 categorically prohibits any "appropriation" or payment "in aid of" religious institutions. That covers many transactions the federal Establishment Clause would allow.
Q: Can a religious institution apply for state grants now?
After Trinity Lutheran and the 2018 AG opinion, the answer depends on the four factors. If the program is generally available, the religious institution is excluded for what it is (not what it would do with the funds), the aid would primarily benefit students, and the institution is not putting the funds to religious use, the institution probably must be allowed to apply. Tax-free institutional bonds remain in a more vulnerable category because they directly aid the institution.
Q: Did this opinion specifically address Northwest Nazarene University?
Rep. Youngblood named Northwest Nazarene University as an example religiously affiliated institution. The opinion did not address NNU specifically; it addressed the general legal framework. NNU's actual eligibility for any specific Idaho program would require a program-by-program analysis under the four factors.
Q: What about Espinoza and Carson?
Those decisions came after this 2018 opinion. Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020), held Montana could not exclude religious-school students from a tax-credit-funded scholarship program. Carson v. Makin, 596 U.S. 767 (2022), extended the principle to direct tuition-assistance programs. Both decisions strengthen the conclusions reached here. A current question should be re-analyzed under the post-Carson framework.
Background and statutory framework
Idaho Constitution Article IX, Section 5 (the Blaine Amendment) is a "no aid" provision that goes beyond the federal Establishment Clause. It bars any public-fund appropriation in aid of religious institutions or for religious purposes, including support of religiously controlled schools, academies, universities, or other "literary or scientific" institutions.
The federal framework before Trinity Lutheran allowed states to apply their Blaine Amendments more strictly than the federal Establishment Clause required, under the doctrine of "play in the joints" articulated in Locke v. Davey. Trinity Lutheran narrowed that doctrine for status-based exclusions while preserving it for use-based exclusions.
Strict scrutiny. When a state imposes a status-based exclusion based on religious identity, the Trinity Lutheran Court applied strict scrutiny: the State needs a compelling interest, narrowly tailored. Missouri's "policy preference for skating as far as possible from religious establishment concerns" was not enough.
The four-factor test the AG distilled from Trinity Lutheran and adjacent cases: (1) public availability, (2) status versus use, (3) direct versus indirect aid, (4) student-primary versus institution-primary benefit.
Citations
- Idaho Const. art. I, § 4; art. IX, § 5; art. XXI, § 19; art. XXI, § 20
- U.S. Const. amend. I
- Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)
- Locke v. Davey, 540 U.S. 712 (2004)
- Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
- Taxpayers for Public Education v. Douglass County School District, 351 P.3d 461 (Colo. 2015), vacated and remanded, 137 S. Ct. 2325 (2017)
- Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders, 181 A.3d 992 (N.J. 2018)
- 1992 Idaho Att'y Gen. Ann. Rpt. 54 (superseded as to Trinity Lutheran framework)
- Companion AG opinions: Va. AG Op. (Mullin) Feb. 15, 2018; Okla. AG Op. (Emmons) Mar. 30, 2018
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/09/Opinion_18-1_BlaineAmendment.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
ATTORNEY GENERAL OPINION NO. 18-01
TO :
The Honorable Rick D. Youngblood
Idaho State Representative
12612 Smith Avenue
Nampa, ID 83651
Per Request for Attorney General's Opinion
Pursuant to your request, the Office of the Attorney General has prepared
the following opinion in response to the questions presented in your July 18, 2018
correspondence .
QUESTIONS PRESENTED
1.
Does the decision in the Trinity Lutheran case alter in any way
the meaning or application of Idaho's Blaine Amendment, and
if so, how?
2.
Idaho's Blaine Amendment appears to be inconsistent with
the other three Constitutional Sections cited [Article I, Section
4, Article XXI, Section 19, and Article XXI , Section 20]. 1 Do
those other Sections limit or alter the meaning, construction
or application of Idaho's Blaine Amendment in any way, and
if so, how?
3.
Does the decision in the Trinity Lutheran case alter in any way
the meaning or application of past Idaho Attorney General
Opinions involving Idaho's Blaine Amendment, and if so,
how?
4.
Do the other three Idaho Constitution Sections cited above
alter in any way the meaning or application of past Idaho
1 This statement was included as part of the question presented and is not meant to reflect
the opinion of the Attorney General.
P.O. Box 83720, Boise, Idaho 83720-001 O .
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 21 O
The Honorable Rick D. Youngblood
Page - 2
Attorney General Opinions
Amendment, and if so, how?
5.
involving
Idaho's
Blaine
Considering the decision in the Trinity Lutheran case and the
four Idaho Constitutional Sections cited, including but not
limited to Idaho's Blaine Amendment, may "any school,
academy, seminary, college, university or other literary or
scientific institution, controlled by any church, sectarian or
religious denomination whatsoever," including Northwest
Nazarene University, legally and constitutionally either
participate in or be excluded from participation in, the
following state activities: (1) on-campus Idaho work study
programs, (2) the issuance of tax-free bonds through the
Idaho Housing and Finance Association, (3) participation of
their students in Title IV-E contracts and grants, and (4) any
other activities involving state moneys that work to benefit
students of the referenced institutions?
CONCLUSIONS
1.
The decision in Trinity Lutheran Church of Columbia, Inc. v. Comer,
- U.S. -, 137 S. Ct. 2012, 198 L.Ed.2d 551 (2017), will likely have some limiting
effect on the application of article IX, section 4 of Idaho's Constitution (the "Blaine
Amendment"). Like the Missouri Constitution, which was at issue in Trinity
Lutheran, Idaho's Constitution provides for greater separation of church and state
than what is already ensured by the Establishment Clause in the First Amendment
of the United States Constitution, as it contains a so-called "no aid" provision which
is commonly referred to as a Blaine Amendment.
In Trinity Lutheran, the United States Supreme Court found that Missouri's
policy of strictly adhering to such an amendment - resulting in the denial of a grant
to a church to make safety improvements to the playground of a preschool it
operated - imposed a penalty on the free exercise of religion that triggered the
strict scrutiny review. The Supreme Court found that Missouri's "policy preference
for skating as far as possible from religious establishment concerns" did not meet
that standard and that the exclusion of Trinity Lutheran from a public benefit for
which it was otherwise qualified solely because it is a school affiliated with a church
could not stand as it violated the right to the free exercise of religion.
In light of the Court's reasoning, the practice of outright denying an
otherwise publicly available benefit to a religiously affiliated applicant solely
because of who or what the applicant is (i.e., a church, religiously affiliated
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university, etc.), as opposed to how the applicant will put the benefit to use (i.e.,
direct religious use versus resurfacing a playground to ensure safety of children),
has been called into question. While this case confirms that "there is 'play in the
joints' between what the Establishment Clause permits and the Free Exercise
Clause compels," the amount of "play" is still in question, especially given that the
Supreme Court included language that suggests the opinion should be limited to
the facts of the case.
2.
A well-established canon of statutory construction is that statutes are
to be construed together and harmonized to the extent possible. The constitutional
provisions identified in your letter (Article IX, Section 5; Article I, Section 4; Article
XXI, Section 19; and Article XXI, Section 20) are capable of being harmonized, as
they generally are establishment and free exercise clauses, and such clauses have
a long history of co-existing. However, such clauses do act as limits upon one
another.
3.
There are few prior opinions issued by the Attorney General involving
the application of article IX, section 5 of the Idaho Constitution. One such Attorney
General Guideline is from February 7, 1992 regarding "potential church/state
constitutional issues associated with an income tax credit for tuition payments to
private schools for children ages K-12." That opinion found that tuition tax credits
for private schools are probably unconstitutional under article IX, section 5 of the
Idaho Constitution. 1992 Idaho Att'y Gen. Ann. Rpt. 54. The Trinity Lutheran
decision likely supersedes the analysis in that Guideline.
4.
Article I, section 4, article XXI, section 19, and article XXI, section 20
of the Idaho Constitution do not alter any past opinions of the Attorney General
involving the Blaine Amendment.
5.
Determining whether it is legal and constitutional to either allow a
religiously affiliated institution to participate in, or be excluded from, state programs
likely depends on a few key factors, including but not limited to: (1) whether the
program is publicly available; (2) whether a religiously affiliated applicant is being
excluded categorically because of who or what they are, as opposed to how the
funds will be used; (3) whether the program provides direct or indirect aid to the
institution; and (4) whether the student is the primary intended beneficiary of the
benefit provided by the program.
The Honorable Rick D. Youngblood
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ANALYSIS
1.
Does the decision in the Trinity Lutheran case alter in any way
the meaning or application of Idaho's Blaine Amendment, and if
so, how?
Article IX, section 5 of the Idaho Constitution provides in pertinent part as
follows:
Neither the legislature nor any county, city, town, township, school
district, or other public corporation, shall ever make any
appropriation, or pay from any public fund or moneys whatever,
anything in aid of any church or sectarian or religious society, or for
any sectarian or religious purpose, or to help support or sustain any
school, academy, seminary, college, university or other literary or
scientific institution, controlled by any church, sectarian or religious
denomination whatsoever ....
This type of provision is what is commonly referred to as a Blaine
Amendment. The term Blaine Amendment dates back to the 1870s when a
congressman named James Blaine sought to amend the United States
Constitution to provide that no public funds should ever be distributed to any
religious sects. That effort narrowly failed, however, a majority of states amended
or drafted their constitutions to include variations of the Blaine Amendment.
Missouri also has a Blaine Amendment which provides as follows:
That no money shall ever be taken from the public treasury, directly
or indirectly, in aid of any church, sect or denomination of religion, or
in aid of any priest, preacher, minister or teacher thereof, as such;
and that no preference shall be given to nor any discrimination made
against any church, sect or creed of religion, or any form of religious
faith or worship.
V.A.M.S. Const., Art. I, § 7. In accordance with this provIsIon, the Missouri
Department of Natural Resources had a policy of categorically disqualifying
churches and other religious organizations from receiving grants. Trinity Lutheran,
137 S. Ct. at 2017.
Trinity Lutheran Church runs a preschool and daycare called the Child
Learning Center (the "Center") in Boone County, Missouri. Id. The Center has a
playground that is used by its daycare students and by children of the surrounding
community. Id.
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In 2012, the Center applied to a program operated by Missouri's
Department of Natural Resources for a grant to replace the gravel surface of its
playground with a safer surface made from recycled tires. Id. The Center met the
neutral requirements for obtaining a grant and scored well in comparison with other
applicants, ranking 5th out of the 44 applicants. Id. at 2018. While the state
awarded 14 grants, it denied the Center's application for a grant based on its policy
of deeming religious institutions categorically ineligible to receive grants. Id. The
Center filed suit claiming that Missouri's policy of denying a generally available
public benefit to religious institutions solely on the basis of their status as a religious
institution violated the Free Exercise Clause of the First Amendment of the United
States Constitution. Id.
The Supreme Court found that "denying a generally available benefit solely
on account of religious identity imposes a penalty on the free exercise of religion
that can be justified only by a state interest 'of the highest order."' Id. at 2019. The
state interest asserted to justify the policy was achieving greater separation of
church and state than what is already ensured by the Establishment Clause in the
First Amendment of the United States Constitution. Id. at 2024. The Supreme
Court found that such an interest was not sufficient to withstand the strictest
scrutiny. Id.
In so finding, the Supreme Court distinguished prior precedent that
permitted a state to withhold a benefit that was going to be put to religious use on
the grounds that Trinity Lutheran was not being denied an otherwise publicly
available benefit because of how it planned to use the grant, but rather because of
what it was. Id. at 2023. More specifically, the Supreme Court distinguished this
case from Locke v. Davey, 540 U.S. 712, 124 S. Ct. 1307, 158 L.Ed.2d 1 (2004),
on the grounds that the plaintiff there "was not denied a scholarship because of
who he was; he was denied a scholarship because of what he proposed to do
use the funds to prepare for the ministry. Here there is no question that Trinity
Lutheran was denied a grant simply because of what it is-a church." 137 S. Ct.
at 2023 (emphasis in original).
The Supreme Court further distinguished Locke on the grounds that in that
case the plaintiff sought the funding for an "essentially religious endeavor" and that
the state had a strong "antiestablishment interest in not using taxpayer funds to
pay for the training of clergy." Id. However, "nothing of the sort can be said about
a program to use recycled tires to resurface playgrounds." Id.
In light of the Supreme Court's decision, the practice of outright denying an
otherwise publicly available benefit to a religiously affiliated applicant solely
because of who or what the applicant is, as opposed to how the applicant will put
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the benefit to use, has been called into question. See, e.g., The Hon. Michael P.
Mullin, 2018 WL 1127735 (Va. Att'y Gen. Op. February 15, 2018) ("In light of Trinity
Lutheran, [Virginia Code] § 15.2-953 likely would run afoul of the Free Exercise
Clause if it required a locality to deny generally available public benefits to
qualifying churches or sectarian organizations solely upon the basis of religious
status, when such benefits are expended for non-religious purposes.").
Trinity Lutheran confirms that "there is 'play in the joints' between what the
Establishment Clause permits and the Free Exercise Clause compels." 137 S. Ct.
at 2019. The amount of "play" is still in question given that the Supreme Court
included language in a footnote that suggests the opinion should be limited to the
facts of the case. 137 S. Ct. at 2024 n.3. However, multiple Justices did not join
in that footnote, and Justice Gorsuch noted that such a limited reading of the
opinion would be unreasonable. Id. at 2025-26. Moreover, other states have relied
on the reasoning in Trinity Lutheran to assess whether their Blaine Amendments
prevent sectarian institutions from enjoying publicly available benefits extending
beyond playground resurfacing. See, e.g., Steve Emmons, 2018 WL 1663640 at
*4-6 (Okla. Att'y Gen. Op. March 30, 2018) (discussing Trinity Lutheran in
concluding that Oklahoma's Blaine Amendment could not be held to prevent the
state from providing free training to campus police commissioned by a private
school solely on the basis that the commissioning entity is of a sectarian nature.).
2.
Idaho's Blaine Amendment appears to be inconsistent with the
other three Constitutional Sections cited [Article I, Section 4,
Article XXI, Section 19, and Article XXI, Section 20]. Do those
other Sections limit or alter the meaning, construction or
application of Idaho's Blaine Amendment in any way, and if so,
how?
"[A]s a general rule, the usual principles governing the construction of
statutes apply also to the construction of constitutions." 16 C.J.S. Constitutional
Law§ 82 (Westlaw 2018). "Statutes that relate to the same subject matter 'are to
be construed in harmony, if reasonably possible."' State v. Thiel, 158 Idaho 103,
109,343 P.3d 1110, 1116 (2015); State v. Seamons, 126 Idaho 809, 811-12, 892
P.2d 484, 486-87 (Ct. App. 1995) ("When construing two separate statutes that
deal with the same subject matter, the statutes should be construed harmoniously,
if at all possible, so as to further the legislative intent.").
Article IX, section 5 of the Idaho Constitution can and should be interpreted
in a manner that does not render it inconsistent with other provisions of the Idaho
Constitution. Article IX, section 5 prohibits specified governmental entities from
making any appropriation of public funds to religious institutions and their affiliates.
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It is essentially a no establishment of religion clause, but is stricter than what is
provided in the First Amendment of the United States Constitution. Article I,
section 4 and article XXI, section 19 of the Idaho Constitution guarantee religious
liberty and prohibit the denial of personal rights and privileges based on one's
religious beliefs. They are essentially clauses designed to ensure the free exercise
of religion.
Establishment and free exercise clauses have co-existed throughout this
nation's history. As was noted by the United States Supreme Court, "there is 'play
in the joints' between what the Establishment Clause permits and the Free
Exercise Clause compels." Trinity Lutheran, 137 S. Ct. at 2019. So such clauses
co-exist, but also act as limits upon one another.
With respect to article XXI, section 20, it simply confirms that Idaho adopts
the United States Constitution.
3.
Does the decision in the Trinity Lutheran case alter in any way
the meaning or application of past Idaho Attorney General
Opinions involving Idaho's Blaine Amendment, and if so, how?
There are few prior opinions issued by the Attorney General involving the
application of article IX, section 5 of the Idaho Constitution. One such opinion is
from February 7, 1992 regarding "potential church/state constitutional issues
associated with an income tax credit for tuition payments to private schools for
children ages K-12." That opinion found that tuition tax credits for private schools
are probably unconstitutional under article IX, section 5 of the Idaho Constitution.
The Trinity Lutheran decision supersedes the analysis in that opinion. This office
will review and recommends that other entities review application of article IX,
section 5 based upon the reasoning of the Trinity Lutheran decision and any
additional interpretative case law moving forward.
Under such a tax credit system, any aid to religiously affiliated schools
would be indirect as the benefit would go to the parents of the children attending
such schools. Accordingly, it would likely be permitted under the United States
Constitution in light of Zelman v. Simmons-Harris, 536 U.S. 639, 652, 122 S. Ct.
2460, 2467, 153 L.Ed.2d 604 (2002) ("where a government aid program is neutral
with respect to religion, and provides assistance directly to a broad class of citizens
who, in turn, direct government aid to religious schools wholly as a result of their
own genuine and independent private choice, the program is not readily subject to
challenge under the Establishment Clause."). So, the question becomes whether
those who attend religiously affiliated schools can be excluded from such a
program based on Idaho's Blaine Amendment. Based on the Supreme Court's
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reasoning in Trinity Lutheran, if those who attended private religiously affiliated
schools were not allowed to participate in that program, such an exclusion would
need to be evaluated to determine if it was being excluded for "who" is participating
(religious school students) versus the purpose of the assistance, student
education. Based upon the reasoning in Trinity Lutheran, it is likely that absent a
finding that the purpose of the benefit was the furtherance of religion, the exclusion
would be constitutionally suspect.
A recent case from Colorado presents an analogous situation. In Taxpayers
for Pub. Educ. v. Douglass Cty. Sch. Dist., 351 P.3d 461 (Colo. 2015), the
Colorado Supreme Court found that a scholarship program that provided tax-payer
funded scholarships to qualifying elementary, middle and high schools students to
attend private schools, including religiously affiliated schools, violated the Blaine
Amendment in Colorado's Constitution. Id. at 470-75. The United States Supreme
Court granted certiorari and, the day after the Trinity Lutheran decision, the
Supreme Court vacated the judgment and remanded the case to the Colorado
Supreme Court for further consideration in light of Trinity Lutheran. Colo. State
Bd. of Educ. v. Taxpayers for Pub. Educ., - U. S. -, 137 S. Ct. 2325, 198 L.Ed.2d
753 (2017). A new school board rescinded the program so the case was dismissed
as moot. However, given that the Supreme Court granted certiorari, vacated the
judgment, and remanded the case for further consideration in light of the Trinity
Lutheran decision, it seems the Supreme Court is signaling that Trinity Lutheran
might apply to these types of programs.
4.
Do the other three Idaho Constitution Sections cited above alter
in any way the meaning or application of past Idaho Attorney
General Opinions involving Idaho's Blaine Amendment, and if
so, how?
Article I, section 4, article XXI, section 19, and article XXI, section 20 of the
Idaho Constitution do not alter any past opinions of the Attorney General involving
the Blaine Amendment.
5.
Considering the decision in the Trinity Lutheran case and the
four Idaho Constitutional Sections cited, including but not
limited to Idaho's Blaine Amendment, may "any school,
academy, seminary, college, university or other literary or
scientific institution, controlled by any church, sectarian or
religious denomination whatsoever," including Northwest
Nazarene University, legally and constitutionally either
participate in or be excluded from participation in, the following
state activities: (1) on-campus Idaho work study programs, (2)
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the issuance of tax-free bonds through the Idaho Housing and
Finance Association, (3) participation of their students in Title
IV-E contracts and grants, and (4) any other activities involving
state moneys that work to benefit students of the referenced
institutions?
Determining whether it is legal and constitutional to either allow a religiously
affiliated institution to participate in, or be excluded from, state programs likely
depends on a few key factors, including but not limited to: (1) whether the program
is publicly available; (2) whether a religiously affiliated applicant is being excluded
categorically because of who or what they are, as opposed to how the funds will
be used; (3) whether the program provides direct or indirect aid to the institution;
and (4) whether the student is the primary intended beneficiary of the benefit
provided by the program.
With respect to work study programs, there are generally available
programs that are meant to assist students in obtaining jobs they can work to assist
them in paying their educational expenses. Such programs are meant to benefit
the student and any benefit to a religiously affiliated institution is indirect.
Excluding religiously affiliated institutions from such programs would likely be seen
as a punishment based on what the institution is and not on what it plans to do with
the benefit. Accordingly, religiously affiliated institutions would likely be permitted
to participate in such programs.
With respect to tax-free bond programs, they would provide a direct benefit
to a religiously affiliated institution and would be meant to primarily benefit the
institution, as opposed to the students. The aid provided could be used to further
the religious objectives of the institution. In light of the foregoing, it is likely both
legal and constitutional to exclude religiously affiliated institutions from
participating in such programs, especially if such grants appear to further the
institution's religious mission. See Freedom From Religion Found. v. Morris Cty.
Bd. of Chosen Freeholders, 181 A.3d 992, 1009-012 (N.J. 2018) (finding that
county's award of historic preservation grants to churches with active
congregations to fund repairs to facilities used to hold religious services violated
the Religious Aid Clause of New Jersey's Constitution, and that excluding
churches from that program did not violate the Free Exercise Clause of the United
States Constitution because of what the churches planned to do with the funds:
"use public funds to repair church buildings so that religious worship services can
be held there").
With respect to participation in Title IV-E contracts and grants, these are
generally for programs that provide stipends to social work students committed to
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practicing in the field of child welfare. To the extent that religiously affiliated
institutions are being denied the opportunity to apply to participate in such
programs solely because they are religiously affiliated, an argument can be made
that such a blanket exclusion of religiously affiliated institutions violates their right
to the free exercise of religion given that: the exclusion is based on what the
institution is as opposed to how the funds will be used; the funds are likely not
being used to further any religious mission of the institution; and the stipends
primarily benefit the students as opposed to the institution.
AUTHORITIES CONSIDERED
1.
Idaho Constitution:
Art. I,§ 4.
Art. IX,§ 5.
Art. XXI, § 19.
Art. XXI, § 20.
2.
U.S. Supreme Court Cases:
Colo. State Bd. of Educ. v. Taxpayers for Pub. Educ., - U.S.-, 137 S. Ct.
2325, 198 L.Ed.2d 753 (2017).
.
Locke v. Davey, 540 U.S. 712, 124 S. Ct. 1307, 158 L.Ed.2d 1 (2004).
Trinity Lutheran Church of Columbia, Inc. v. Comer, - U.S. -, 137 S. Ct.
2012, 198 L.Ed.2d 551 (2017).
Zelman v. Simmons-Harris, 536 U.S. 639, 122 S. Ct. 2460, 153 L.Ed.2d 604
(2002).
3.
Idaho Cases:
State v. Seamons, 126 Idaho 809, 892 P.2d 484, (Ct. App. 1995).
State v. Thiel, 158 Idaho 103, 343 P.3d 1110, (2015).
4.
Other Cases:
Freedom From Religion Found. v. Morris Cty. Bd. of Chosen Freeholders,
181 A.3d 992 (N.J. 2018).
Taxpayers for Pub. Educ. v. Douglass Cty. Sch. Dist., 351 P.3d 461 (Colo.
2015).
The Honorable Rick D. Youngblood
Page - 11
5.
Other State Constitutions:
V.A.M.S. Const., Art. I,§ 7 (Mo. Const.).
6.
Other Authorities:
1992 Idaho Att'y Gen. Ann. Rpt. 54.
Steve Emmons, 2018 WL 1663640 at *4-6 (Okla. Att'y Gen . Op. March 30,
2018).
The Hon. Michael P. Mullin, 2018 WL 1127735 (Va. Att'y Gen. Op. February
15, 2018).
16 C.J.S. Constitutional Law§ 82 (Westlaw 2018).
LAWRENCE G. WASDEN
Attorney General
Analysis by:
PETER WUCETICH
Deputy Attorney General
STEVEN OLSEN
Deputy Attorney General
BRIAN P. KANE
Assistant Chief Deputy Attorney General