June 26, 2017 – Milwaukee, WI – The U.S. Supreme Court has issued an important decision today defending religious liberty. A religious pre-school and day care center was denied the ability to participate in a state program which provided aid to create safer playgrounds. The pre-school was denied participation solely because it was a religious entity. As the Supreme Court put it with respect to the program “religious entities need not apply.” The Supreme Court concluded that denying a public benefit on such a basis unconstitutionally punishes the entity for its exercise of its religious beliefs.
According to WILL President and General Counsel Rick Esenberg, “the decision is an important acknowledgement of and protection of the Free Exercise Clause. It means that religious entities cannot be discriminated against by the state in the disbursement of widely available public benefits. It recognizes that religious entities and people cannot be barred from participation in public programs merely because they are religious.” One area of potential major impact would be any school choice/voucher program that bars religious schools from participation.
The Court’s finding that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion” will have implications beyond the particular government program involved here. For example, it seems that state constitutions that have so-called Blaine amendments providing that no state funding may go to religious schools will no longer be able to exclude those schools from a voucher program made generally available to private schools. Nor does it appear that these Blaine Amendments mean that private school choice programs that include such schools will be susceptible to challenge if the choice to attend a religious or secular school is made by the student or his or her family.