U.S. Supreme Court to decide if New York gun law violates U.S. Constitution

On Wednesday, the U.S. Supreme Court appeared ready to overturn New York’s restrictive concealed weapons law, though judges seemed concerned that an overly broad ruling could jeopardize gun restrictions on subways, bars, stadiums, and other locations. New York’s law puts on a burden to New Yorkers requiring them to show a “special need” to carry a firearm. Chief Justice John Roberts and other members of the court suggested that New York’s law had gone too far and may violate the Second Amendment to the U.S. Supreme Court.

Photo via Wikimedia Commons

The Second Amendment, part of the Bill of Rights to the U.S. Constitution, reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Second Amendment advocates hope the law is overturned to pave the way for similar laws to be repealed in California and other restrictive states who would also be ruled unconstitutional. About 80 million people live in such states who have had their ability to protect themselves highly limited due to highly restrictive gun laws. These laws cause law-abiding citizens to not own firearms to protect themselves, their families, and their property, while allowing criminals to run roughshod over them as they purchase firearms on the black market.

In 2008, the U.S. Supreme Court ruled that the right to own and carry a gun under the Second Amendment gives Americans the right to have a gun in their home for self-defense. On Wednesday, the question arose about how far state and local governments can go to regulate whether a person can carry a weapon outside the home. New York states that its law is not an outright prohibition on carrying weapons but a more moderate restriction. During a two-hour discussion between lawyers and the justices, about six other states have similar laws like New York’s restrictive concealed weapons law.

Chief Justice John Roberts asked why should a person who requires a license to carry a gun in public for self-defense to prove a special need to do so. “The idea that you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights,” he said.

Tuesday’s Take: Barrett confirmed for SCOTUS, 1 week to general election, 6 days to health insurance exchange opening

Senate Confirms Amy Coney Barrett

After a unanimous vote by the Judiciary Committee last week, last night the Senate confirmed Seventh Circuit Court of Appeals Judge Amy Coney Barrett to become the 115th Associate Justice of the United States Supreme Court.
 
Throughout Justice Barrett’s career, she has upheld the U.S. Constitution as written and judged against her personal beliefs to support the Constitution. The American Bar Association gave Barrett its highest rating, and she has an impressive track record across the legal profession—as a judge, professor, and litigator.

General Election on November 3, 2020

We will hold the general election on November 3, 2020 from 7 AM to 7PM for president, vice-president, members of Congress, etc. And Florida has six amendment proposals to its state constitution. For our voter guide in Palm Beach County, use this link.

Early voting in Palm Beach County ends at 7 PM on Sunday, November 1, 2020 at select locations around the county. You can find early voting sites here via this link.

Photo by Element5 Digital on Pexels.com

If you have an absentee ballot (vote by mail), we strongly recommend it that you mail it today and not wait. They must receive absentee ballots by November 3, 2020 at 7 PM. Waiting to post mark your ballot on Monday, November 2, 2020 could mean it is not received by the Supervisor of Elections on time and you would have missed out in voting this election cycle.

Healthcare.gov opens on November 1, 2020

On November 1, 2020, those seeking a government subsidy to help pay for their health insurance premiums will sign up for coverage starting on January 1, 2020. You can go to healthcare.gov now to preview health insurance plans and see if you may qualify for a subsidy, though you cannot sign up until Sunday, November 1. 2020 and can do so up until Tuesday, December 15, 2020.

How to watch the 2020 presidential debate between Trump and Biden, topics they will cover

Tonight at 9:00 PM Eastern, President Donald Trump and Joe Biden will debate at Case Western Reserve University in Cleveland, Ohio. The debate will not include Jo Jorgensen as her name was not included in the 5 polls the Commission on Presidential Debates used for qualification to be on the debate stage. Biden, Jorgensen, and Trump are the only three presidential candidates who will be on the ballot in all 50 states and the District of Columbia. If you wish to watch Jorgensen, you can do so before the debates at 6:00 PM Eastern on YouTube here: https://www.youtube.com/c/JoJorgensenforPresident2020

Joe Biden, Jo Jorgensen, Donald Trump

The format for the first debate calls for six 15-minute time segments dedicated to topics announced in advance to encourage deep discussion of the leading issues facing the country.

Chris Wallace is the moderator of the first 2020 presidential debate, has selected the topics for that debate. The debate will run for 90 minutes without commercial interruption. You can watch the debate either on C-Span or via YouTube here: https://www.youtube.com/watch?v=wW1lY5jFNcQ

Subject to changes because of news developments, the topics for the September 29 debate are as follows, not necessarily to be brought up in this order:
The Trump and Biden Records
The Supreme Court
Covid-19
The Economy
Race and Violence in our Cities
The Integrity of the Election

As tensions rise, gun sales rise in America

One way to monitor how active firearms sales are in America is by reviewing the number of background checks when a firearm is purchased by a federal firearms licensee ( a typical gun store ). Last month, those background checks exceeded 135% (3.9 million) over June 2019. Here in Florida, there were 210,415 background checks to purchase firearms from firearms dealers in June 2020.

Photo via Wikimedia Commons

There could be several reasons for this rise in gun sales; from the recent protests, to those predicting a dire economy in coming months, to recent U.S. Supreme Court inaction on gun rights.

For all the talk about how “right-wing” the U.S. Supreme Court has become, it has chosen not to hear key Second Amendment cases, kicking them back down to the states. Two cases that refused to be heard by the Court in June were dealing with semi-automatic firearms that are banned in two states. One would think if the court was so “right-wing” that the Court would hear those cases and strike down those bans; however, it was not to be. So some Americans are fearful more bans are on the way, so they need to get the firearms they need for protection now. President Trump saying things like, “Take the firearms first and then go to court,” doesn’t help qualm the fears of gun owners. Trump’s ban on bump stocks, extending the waiting period to purchase a firearm, and his statement that he supports a “ban on assault weapons,” leaves room for fear for Americans to get their guns now.

Then there is the fresh rise of Black Lives Matter (BLM) protests after the May 25, 2020 killing of George Floyd by Minneapolis police officer, Derek Chauvin. The killing of Floyd helped reignite anger against the police and put back in focus the relations between blacks and whites in America. The spillover has resulted in various statutes being defaced or toppled, even that of Frederick Douglass, which has caused many Americans to wonder where the violence is going next.

Meanwhile, fear that the government will turn off the spigot of “free money” going out to the populous and cause widespread thefts and violence is another reason people are adding to their personal protection plans. Many Americans who have had their businesses closed or have had their livelihoods adversely affected by government closure mandates because of COVID-19, may have to figure out other means of income. Congress may re-institute another payment program for these business owners and workers next week as Senators and U.S. House members return to work, but that is all unsure at this point. But many see on the horizon the potential for mass layoffs from major and small businesses as the government mandates they patronize fewer businesses. While unemployment has been going down recently, many feel it will rise dramatically because of the government shutdowns. Bankruptcies, foreclosures, tax deed sales, are all genuine possibilities in coming months.

Since we have a presidential election coming up on November 3, 2020, it is worth noting where the three presidential candidates who are expected to appear on the ballot in all 50 states stand on gun rights and gun control. As mentioned earlier in this article, Donald Trump has not been the best in the eyes of gun rights advocates, and it would seem that he and Joe Biden are similarly aligned for gun control measures. They both feel “assault weapons” (however those are defined) should be banned from Americans’ possession, support extensive background checks before a citizen can purchase a firearm, and support so-called red flag laws. Jo Jorgensen has stated her opinion on gun rights this way via her Twitter account, “I support the repeal of all laws restricting the right to bear arms, including red flag laws. I would abolish the ATF whose sole purpose is to enforce unconstitutional laws.” So it would appear, if you support gun control, then a vote for Biden or Trump is in order, and if you support gun rights, then a vote for Jorgensen would be in order.

Campaign Websites: Joe Biden, Jo Jorgensen, Donald Trump.

Law firm creates 50-state guide to view the impact of U.S. Supreme Court case Espinoza v. Montana

After last week’s landmark U.S. Supreme Court ruling in Espinoza v. Montana Department of Revenue, which held that it is unconstitutional to exclude religious schools from private educational choice programs, the Institute for Justice (IJ), which litigated the Espinoza case on behalf of parents, released a 50-state guide to help policymakers in each state better understand the impact of Espinoza in their state. The guide analyzes each state’s constitution considering Espinoza and explains how the ruling affects policymakers’ ability to enact educational choice programs.

Photo Credit: Institute for Justice

“As a result of Espinoza, nearly every state is now free to enact programs that will empower parents to choose the educational environment that works best for their own children, whether those options are public, private or religious,” said IJ Senior Attorney Tim Keller. “This new guide helps policymakers understand how this momentous decision clears the way for robust educational choice programs with the ability to spur the creation of a greater number of educational opportunities for students.”

In Espinoza, the Supreme Court ruled that the Montana Supreme Court violated the federal Constitution when it relied on its state Blaine Amendment to invalidate a tax-credit scholarship program solely because parents could use their scholarships to send their children to religious schools. As Chief Justice John Roberts wrote, “A State need not subsidize private education. But once a State does so, it cannot disqualify some private schools solely because they are religious.” The Espinoza ruling builds on previous Supreme Court decisions that hold that when a government enacts a scholarship program, the benefits only go to schools through the independent choices of students and parents. As the Court explained, “[G]overnment support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.”

“It is important to note in the context of Espinoza and earlier school choice U.S. Supreme Court rulings, not one dollar of funds may be spent for a child’s education in a religious school but for the private and independent choice of a parent,” said Keller. “The funds used in school choice programs are used to secure a quality education for each child, not to subsidize any school. This is not the government subsidizing religious schools; choice programs are about giving mostly low-income families access to a high-quality education they could not otherwise afford.”

With this ruling, the Court sharply limits the application of the 37 state Blaine Amendments and ensures that no state, whether it has a Blaine Amendment or not, can exclude parents from choosing religious educational options just because they participate in a private educational choice program. The U.S. Constitution, the Chief Justice wrote, “condemns discrimination against religious schools and the families whose children attend them. They are ‘member[s] of the community too,’ and their exclusion from the scholarship program [in Montana] is ‘odious to our Constitution’ and ‘cannot stand.’”

Although 20 states have already interpreted their Blaine Amendments to allow parents to select religious schools as part of a choice program, most of the remaining 15 states can no longer rely on their Blaine Amendments to prevent parents from choosing the best school for their children. (Two states—Massachusetts and Michigan—will be unaffected by Espinoza).

Its Blaine Amendment will haunt Florida’s educational choice landscape. Florida’s Blaine Amendment discriminates against religious educational options as the Montana Blaine Amendment was at issue in Espinoza. It thus cannot be invoked to prohibit religious educational options from an available choice program. After Espinoza, Florida’s Blaine Amendment is no longer an impediment to passaging an available educational choice program. However, lawmakers must still navigate the intricacies of the Florida Supreme Court’s 2006 decision in Bush v. Holmes, striking down a state voucher program for children attending chronically failing schools under the state constitution’s education article. Bush held that the voucher program at issue in that case violated the state’s obligation to operate a uniform public education system. Thankfully, Florida continues to offer families robust educational choice through its tax credit program, its voucher and education savings account programs for students with special needs, and its means-tested voucher program.

The IJ guide analyzes each state and includes links to model legislation for policymakers who are interested in expanding educational choice in their state.

“This decision is a great opportunity for supporters of educational choice,” said IJ Educational Choice Attorney David Hodges. “We are looking forward to working with policymakers nationwide to enact programs that ensure that no matter where children live or how much money their parents have, they can get access to a good education.”

Palm Beach Libertarians present ‘Little Pink House’ at the Boynton Beach Cinemark next week

Boynton Beach, Fla – May 22, 2018 – The Libertarian Party of Palm Beach County (LP Palm Beach), the third largest political party in Palm Beach County, is presenting the only screening of the movie ‘Little Pink House‘ in the county. Libertarians in the county sold over 80 tickets for the screening to happen on May 28, 2018, at 7:30 p.m. at the Cinemark Boynton Beach 14 and XD theater. Those who purchased advanced tickets can find them at this link and click on “Find My Ticket” to print out and take to the theater and you can use the same link to purchase a ticket. We did have a few benefactors who made sure this event happened and for those who cannot afford to buy tickets but want to see the movie, please send an email to chair@lppalmbeach.org and we may be able to coordinate getting you a ticket.

‘Little Pink House’ stars two-time Academy Award nominee Catherine Keener (Get Out,lph-2000x1333

Capote, The 40-Year-Old Virgin

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Capote, The 40-Year-Old Virginlph-2000x1333

Capote, The 40-Year-Old Virgin), Emmy nominee Jeanne Tripplehorn (Big Love, The Firm, Grey Gardens), and Callum Keith Rennie (Fifty Shades of Gray, Warcraft: The Beginning, Memento). The screenplay is adapted from Jeff Benedict’s book, Little Pink House: A True Story of Defiance and Courage. Little Pink House also features an original song by two-time Rock & Roll Hall of Fame inductee David Crosby entitled “Home Free.”

lph-2-2000x1333Based on a true story, a small-town EMT named Susette Kelo (

Based on a true story, a small-town EMT named Susette Kelo (Based on a true story, a small-town EMT named Susette Kelo (Catherine Keener) leaves a bad marriage and starts over in a new town. She buys a rundown cottage in New London, Connecticut, refurbishes it with her bare hands, paints it pink, meets a great guy (Callum Keith Rennie), and exhales.

Then she discovers powerful politicians are bent on bulldozing her blue-collar neighborhood to make way for condos and office buildings designed to benefit the new corporate headquarters of the pharmaceutical giant, Pfizer. (Execs are eager to expand their facilities because they have high hopes for a soon-to-be-released drug called Viagra).

Before there were Tea Parties, there was Kelo. Susette Kelo’s name turned into a movement. Thelittle-pink-house-ricardo-hubbs-2000x1333.jpg

loss of her property was the final straw for Americans in 2005. When they heard about the Kelo U.S. Supreme Court decision, homeowners and small businesses across this country refused to accept the idea that a well-connected developer could turn city hall into a real estate broker and force a hardworking, honest, middle-aged nurse to leave her home for the economic benefits accruing to a large pharmaceutical company and the political benefits accruing to a soon-to-be jailed governor. The libertarian advocacy law firm, Institute for Justice argued the case to the Supreme Court.

little-pink-house-ricardo-hubbs-2000x1333.jpg

loss of her property was the final straw for Americans in 2005. When they heard about the Kelo U.S. Supreme Court decision, homeowners and small businesses across this country refused to accept the idea that a well-connected developer could turn city hall into a real estate broker and force a hardworking, honest, middle-aged nurse to leave her home for the economic benefits accruing to a large pharmaceutical company and the political benefits accruing to a soon-to-be jailed governor. The libertarian advocacy law firm, Institute for Justice argued the case to the Supreme Court. little-pink-house-ricardo-hubbs-2000x1333.jpg

loss of her property was the final straw for Americans in 2005. When they heard about the Kelo U.S. Supreme Court decision, homeowners and small businesses across this country refused to accept the idea that a well-connected developer could turn city hall into a real estate broker and force a hardworking, honest, middle-aged nurse to leave her home for the economic benefits accruing to a large pharmaceutical company and the political benefits accruing to a soon-to-be jailed governor. The libertarian advocacy law firm, Institute for Justice argued the case to the Supreme Court.

The Supreme Court decision galvanized Libertarians from around the country and here in Florida to enact stronger eminent domain laws. Florida became one of the first states to enact strong property rights protections against such eminent domain abuses by state and local governments. Libertarians from around the State of Florida caused the Florida legislature to add Article X, Section 6c which prohibits the conveyance of property taken by eminent domain to another person or private entity without 3/5ths approval of both houses of the Florida legislature.

Supreme Court strikes down federal gambling law

Washington, D.C. – Yesterday, May 14, 2018, the U.S. Supreme Court (SCOTUS) struck down the Professional and Amateur Sports Protection Act of 1992 (PASPA) as unconstitutional. The decision eliminates the federal prohibition on sports betting and will now allow a state to determine whether or not to legalize sports betting. Libertarians would suggest no laws, state or federal, should exist on gambling and allow the free market to thrive. But there is too much money to be made via forced taxes for politicians to resist. Several states already have laws on the books to allow for sports betting (pending the SCOTUS decision) and many more are currently considering legislation.

The Poker Players Alliance, the leading poker and internet gaming advocacy group, applauded the ruling. “This is a great decision for consumers who for years have had no alternative to wager on sports other than the black market,” said Rich Muny, president of the Poker Players Alliance. “It presents states with the perfect opportunity to establish sensible policies not only to regulate sports wagering but also other forms of gaming, including internet poker. Whether you are betting on sports or playing poker, lawmakers must make it a priority protect consumers. The states that have already regulated internet poker have proven that it can be done in a way that benefits consumers and governments. It makes sense for states that are eyeing sports betting to also realize the benefit of regulated iPoker and iGaming.”

Many poker players are also avid sports bettors. A recent survey revealed that 68 percent of poker players also wager on sports and more than 90 percent support changes to federal and state laws to keep citizens from arrest for taking part in such activities.

“Today marks an important date for the future of gaming in the United States. The future of sports betting will continue to rely on internet and mobile technologies, and this is also true for all gaming. Now more than ever, states should take control of unregulated internet poker and sports betting and create systems that protect adult consumers and provide governments with new streams of revenue,” concluded Muny.

American Gaming Association (AGA) President and CEO, Geoff Freeman, held a briefing call to discuss the impact of the Supreme Court ruling:

“Today is a monumental day for gaming in America. The $150 billion-a-year illegal sports betting industry is on the ropes, and the court’s decision is a victory for the millions of Americans who seek to bet on sports in a safe and regulated manner.”

In a statement this morning, Freeman said the AGA stands ready to work with all stakeholders – states, tribes, sports leagues, and law enforcement – to create a new regulatory environment that capitalizes on this opportunity to engage fans and boost local economies.

Others have been commenting as well, such as the Nevada Gaming Control Board which released a statement this morning heralding the ruling:

“The Nevada Gaming Control Board is the gold standard for legal, regulated sports betting. For decades, Nevada has been the only jurisdiction to offer a full range of sports betting options to the public. Nevada has proven that our model is not only successful but stands the test of time. The Nevada Gaming Control Board supports today’s Supreme Court decision striking down the Professional and Amateur Sports Protection Act. In the coming months, as individual states decide whether or not to authorize legalized sports betting, and embark on establishing their own regulatory frameworks, the Nevada Gaming Control Board looks forward to acting as a resource and sharing our model with other jurisdictions.”

sports-betting

Case Appealed to U.S. Supreme Court Asks If All 50 States Must Comply with U.S. Constitution’s Excessive Fines Clause

The Eighth Amendment to the U.S. Constitution prohibits excessive fines by the federal government. But does the same prohibition apply when state and local authorities impose the fine?

That is the question raised by a petition filed in the U.S. Supreme Court yesterday (January 31, 2018) by the Institute for Justice on behalf of Tyson Timbs.

Tyson’s road to the Supreme Court began shortly after his father died, leaving him more than $70,000 in life-insurance proceeds. Tyson used some of the money to buy a new Land Rover LR2. Four months later, however, his car was seized when he sold four grams of heroin to undercover officers. Tyson pleaded guilty to drug dealing, served one year on house arrest and paid $1,200 in court fees. Most importantly, his arrest prompted him to get his life back on track.

Tyson’s reintegration into society became harder the day the state tried to take his Land Rover through civil forfeiture. Civil forfeiture is the controversial law enforcement tool that allows the government to confiscate a person’s property and allows the seizing agencies to keep 100% of the resulting proceeds. As documented in Tyson’s case, civil forfeiture creates a perverse financial incentive to pursue forfeiture in a way that maximizes profits for police and prosecutors.

The trial court ruled the police should return Tyson’s vehicle because forfeiture of his $40,000 car would be “grossly disproportional” to his offense, and therefore unconstitutional under the Excessive Fines Clause. The Indiana Court of Appeals agreed with that conclusion, noting that Tyson had sold only four grams of heroin, all to undercover officers. But this past November, the Indiana Supreme Court ruled in favor of the government, holding that state and local authorities do not need to comply with the U.S. Constitution’s Eighth Amendment in imposing fines or forfeitures.

Represented by the Institute for Justice, Tyson yesterday filed a petition for certiorari—an appeal to the U.S. Supreme Court—asking the Court to reverse the Indiana court’s decision.

“This case is about more than just a truck,” said Wesley Hottot, an attorney with the Institute for Justice. “The Excessive Fines Clause is a critical check on the government’s power to punish people and take their property. Without it, state and local law enforcement could confiscate everything a person owns based on a minor crime or—using civil forfeiture—no crime at all.”

“I committed a crime, then I did my time and cleaned up my life,” said Tyson Timbs, “With forfeiture, they are trying to take away one of the few things I own—that I bought with money from my dad. Forfeiture only makes it more challenging for people in my position to clean up and become contributing members of society.”

Constitutional protections against excessive fines have never been more important than they are today. In the words of one Indiana Supreme Court justice, law enforcement is increasingly using “Weapons of Mass Destruction” against low-level criminal offenders, financially vulnerable property owners, and even innocent people.

“The truth is that civil forfeiture is one of the greatest threats to property rights today,” said IJ Attorney Sam Gedge. “Police and prosecutors have every incentive to maximize their own profit, and, unless we have federal protections against excessive fines, no one’s property is safe.”

The government’s impulse to levy excessive penalties is not unique to forfeiture. In Ferguson, Missouri, for example, the U.S. Department of Justice determined that “[c]ity officials have consistently set maximizing revenue as the priority for . . . law enforcement activity.” In nearby Pagedale—five miles south of Ferguson, in another case litigated by the Institute for Justice—low-income residents have been fined thousands of dollars for trivial offenses like missing curtains, aging paint, walking on the left side of crosswalks, and enjoying a beer within 150 feet of a grill. And in Charlestown, Indiana, in yet another IJ case, local officials imposed crippling fines on low-income homeowners to force them to sell their land to a private developer.

“Increasingly, our justice system has come to rely on fines, fees, and forfeitures to fund law enforcement agencies rather than having to answer to elected officials for their budgets,” said IJ Senior Attorney Darpana Sheth, who heads the Institute for Justice’s initiative to end forfeiture abuse. “This is not just an ominous trend; it is a dangerous one. We hope the Supreme Court takes this issue on so we can establish that the U.S. Constitution secures meaningful protections for private property and limits the government’s ability to turn law enforcement into revenue generators.”

Tyson’s petition for certiorari will be considered by the Supreme Court later this year.

2016 Presidential Candidate Gary Johnson takes his case to the Supreme Court steps

Washington, D.C. — Yesterday, October 26, 2017, Libertarian Party Presidential gary-johnsonNominee Governor Gary Johnson held a press conference and rally on the steps of the U.S. Supreme Court. The focus was on the unfairness of the Commission on Presidential Debates (CPD) and over $100,000 Johnson’s non-profit has raised recently to fight for more inclusive presidential debates in the future. Through his “money bomb,” he had a goal to raise $100,000 which, as of this morning, is now over $105,000. A video of yesterday’s press conference can be seen via this link.

Johnson said, “I still believe fervently today that my voice was reflective of the majority of Americans but I did not have the opportunity to make that happen [the public to know his views]. Look, if you are not in the presidential debates, you’re not running for president.” Johnson said he agreed with the CPD that there needs to be some criterium and feels strongly that someone who is on the ballot in all 50 states should be included in the presidential debates. His other frustration with the process of being a presidential candidate is that polling companies would not include his name in the polling of likely voters, thereby leaving him off news feeds. Additionally, it was common during the 2016 presidential election for news reporters and anchors to say “the two presidential candidates” and give daily reports of the Democrat and Republican while ignoring the Libertarian.

Johnson is suing the CPD to include any presidential candidates in their presidential debates, regardless of political party affiliation, so long as they mathematical chance to win a presidential election. In 2016, even though Johnson was on the ballot in all 50 states and could have won the presidential election, he was excluded from being seen by the public at the same level as the Republican and Democratic candidates thereby stalling his campaign.

In Major Win for School Choice, U.S. Supreme Court Vacates Colorado Supreme Court Decision, Sends Case Back for Further Review

Arlington, Va.— In a major and encouraging development for school choice nationwide, yesterday, June 27, 2017, the U.S. Supreme Court vacated a 2015 judgment of the Colorado Supreme Court that had struck down Douglas County, Colorado’s Choice Scholarship Program for elementary and secondary students. The nation’s highest court remanded the case back to the state court, instructing it to reconsider its earlier decision in light of the U.S. Supreme Court’s recent ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, which held that Missouri violated the U.S. Constitution when it relied on a “Blaine Amendment” in its state constitution to exclude a religious preschool from the state’s playground resurfacing program.

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Photo Credit: Institute for Justice

 

“Today’s order sends a strong signal that just as the U.S. Supreme Court would not tolerate the use of a Blaine Amendment to exclude a religious preschool from a playground resurfacing program, it will not tolerate the use of Blaine Amendments to exclude religious options from school choice programs,” explained Michael Bindas yesterday, a senior attorney with the Institute for Justice (IJ). IJ is defending the Choice Scholarship Program on behalf of three families with children who received scholarships under the program, only to lose them when the state courts struck the program down.

The Choice Scholarship Program is a local school choice program adopted by the Douglas County Board of Education in March 2011 to “provide greater educational choice for students and parents to meet individualized student needs.” The program provided 500 scholarships that parents could use to send their children to any private school that participated in the program and that had accepted the children.

In June 2011, however, the American Civil Liberties Union, Americans United for Separation of Church and State, and several Colorado organizations and taxpayers sued the school board, school district, Colorado Department of Education and Colorado Board of Education in Denver District Court to stop the program.

In August 2011, the Denver District Court held that the program violated the state constitution and enjoined its implementation. But the Colorado Court of Appeals reversed that decision and upheld the program in February 2013.

In June 2015, however, the Colorado Supreme Court reversed again and invalidated the program once more. According to a three-justice plurality of the court, the program violated Article IX, Section 7 of the Colorado Constitution—a “Blaine Amendment”—which prohibits the government from making appropriations “to help support or sustain any school . . . controlled by any church or sectarian denomination.” The opinion ignored the fact that the Choice Scholarship Program was designed to aid Douglas County families, not schools, and that not a penny flowed to any school, religious or nonreligious, but for the private and independent choice of parents.

“Blaine Amendments, which are found in some 37 state constitutions, are vestiges of 19th-century, anti-Catholic bigotry,” explained IJ Senior Attorney Timothy Keller. “They were designed to preserve the generic Protestant nature of the nation’s public schools—which, at the time, were overtly religious but not ‘controlled by any church or sectarian denomination’—and to deny any aid to Catholic schools.”

In October 2015, IJ petitioned the U.S. Supreme Court to review the Colorado Supreme Court’s judgment. The U.S. Supreme Court, however, refrained from acting on the petition until it ruled in Trinity Lutheran, which it did on June 26, 2017. In Trinity Lutheran, the Court held that Missouri’s Blaine Amendment did not justify the state’s exclusion of a church-run preschool from a state playground resurfacing program. Barring the church from the program, the Court held, violated the Free Exercise Clause of the U.S. Constitution.

In light of its Trinity Lutheran decision, the U.S. Supreme Court today vacated the Colorado Supreme Court’s 2015 judgment in the Douglas County case, Doyle v. Taxpayers for Public Education, and remanded the case back to the state court with an instruction to give the case “further consideration in light of Trinity Lutheran.” Such an order—called a “grant, vacate and remand” order—is warranted when the Supreme Court believes there is “a reasonable probability” that the lower court would resolve the case differently “if given the opportunity for further consideration” in light of an intervening U.S. Supreme Court decision in another case.

“Today’s development gives hope to all Douglas County families—indeed, all American families—who simply want the right to choose the schools that are best for their kids,” said IJ President Scott Bullock. “Douglas County tried to give its families every opportunity for the best possible education for their children. While that opportunity was taken away by the Colorado Supreme Court’s earlier ruling, it appears that Douglas County families may soon get it back.”