Nowhere in the Trinity Lutheran Church v. Comer opinion are the terms “school voucher,” “tuition tax credit,” or “education savings account” mentioned. But let there be no doubt that school voucher advocates and opponents alike view this case as a marker for whether the Supreme Court will require states to allow parents and children to use publicly funded school vouchers for religious schools. In Trinity Lutheran, the Court held that denial of an otherwise available public benefit to religious institutions violated the Trinity Lutheran Church’s First Amendment free exercise rights, even in the face of state constitutional prohibitions on the use of public funds for religious purposes. While I will leave the broader implications of the Trinity Lutheran decision to my colleagues (such as Profs. McConnell and Sonne) who are experts in religious liberties, and despite the fact that in a footnote the plurality of the Court purports to limit the decision to the narrow facts of the case, Trinity Lutheran should provide cause for concern among those who oppose school vouchers generally and those who oppose vouchers for religious schools specifically.

For nearly three decades, the expansion of public charter schools and establishment of publicly funded school voucher programs (and their close cousins, tuition tax credits and education savings accounts) have been among the chief policy objectives of market-based school reformers. Apart from the political and fiscal barriers to the establishment of voucher programs, the voucher movement has been hamstrung by federal and state constitutional litigation, particularly lawsuits aimed at those programs that would allow vouchers to be used at religious schools. While there are only about 25 publicly funded voucher programs in 14 states, the school voucher movement has nonetheless quietly grown and, more important, has been recently energized by the election of Donald Trump and the appointment of voucher proponent, Betsy DeVos, to Secretary of Education. With the political winds shifting, voucher opponents may need to make their case in court and Trinity Lutheran may make that case more difficult.