Monday, June 26, 2017
I have very little to add to Marc's and Tom's helpful reflections on today's Trinity Lutheran case. Like Marc, I'm struck by the complete irrelevance to the Court's reasoning of the Blaine Amendments' anti-Catholic history, context, and purpose (for more on that, see, e.g., this). I wonder what (if anything) this silence means for the "animus" argument in the context of the "Travel Ban" litigation?
I do think it is worth noting -- primarily by way of a response to a suggestion made by Melissa Rogers in this news story -- that nothing in the case turned on the fact that Trinity Lutheran's pre-school (quoting the Chief Justice's opinion) "admits students of any religion." That is, contrary to the argument in this amicus brief, it would not be the case that allowing a church-run daycare that did prefer co-religionists to participate in an evenhanded, secular-purpose program like the one at issue somehow constitutes government subsidization of (invidious) "discrimination."