Legal advocates for the Douglas County Choice Scholarship Program (CSP) have filed response briefs to the Colorado Supreme Court asking that the case be denied hearing. The libertarian Institute for Justice (IJ), which is helping defend the program, cited state and federal precedent in arguing opponents of the CSP ignore the constitutionally-required neutrality of state aid programs with regard to religion.
A total of three briefs were filed to the Colorado Supreme Court on April 26 against the complaint brought by ACLU, which has appealed to the state’s high court against the CSP. Legal representation from Rothberger, Johnson, and Lyons filed an opposition brief on behalf of Douglas County School District.
Last month, the ACLU claimed that the CSP was a “misguided scheme” to use public funds to “subsidize religious institutions,” according to Alex J. Luchenitser, associate legal director of Americans United. The Colorado Court of Appeals disagreed, ruling in favor of the Douglas County School District and lifting the injunction against the program.
The ACLU responded by taking its complaint to the Colorado Supreme Court.
In its petition to the Supreme Court, IJ referenced the case Zelman v. Simons-Harris, wherein the U.S. Supreme Court rejected the arguments of an Establishment Clause challenge to a K-12 scholarship program which IJ called “legally indistinguishable from Douglas Countys.” In a decision very similar to the Colorado Supreme Courts Americans United (1982) decision, the U.S. Supreme Court upheld the program in question with its Zelman decision, saying the program was “neutral with respect to religion” and a matter of “true private choice.”
The U.S. Supreme Court also ruled in the Zelman case that providing a benefit 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 effectively severs the link between state funding and religious institutions.
Any “incidental advancement of a religious mission,” the court concluded, “is reasonably attributable to the individual recipient, not to the government.”
In light of Zelman, IJ asserted “it is now settled that the Establishment Clause permits evenhanded funding of education – religious and secular – through student scholarship.”
Citing further federal precedents, the IJ brief noted that the U.S. Supreme Court has held that excluding religious schools from aid programs is inconsistent with its decisions prohibiting governments from discriminating in the distribution of public benefits based upon religious status or sincerity.
The nation’s highest court has repeatedly refused to create religious tests for public benefits that involve discrimination based on an organizations religious mission, zeal or the sincerity of their held religious beliefs. According to the IJ brief, any such test violates the constitutional requirement of neutrality toward religion embodied in the Establishment and Free Exercise Clauses.
According to the U.S. Supreme Court ruling in Everson v. Board of Education (1947), the Free Exercise clause prohibits government exclud[ing]…members of any…faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. IJ pointed out that just as the Establishment Clause “prohibits the government from favoring religion,” so too does it prohibit government from “discriminating against religion.”
IJ insisted the suit against Douglas Countys CSP rejects precedent, and the cases cited appear to leave the ACLU and other CSP opponents with little ground to stand on.
As such, IJ urged that the case be denied hearing because the ACLU is petitioning the Court for the very purpose of ignoring Zelman and the other federal post-Americans United cases […] As the Court of Appeals recognized, ignoring these federal developments was not an option: not only is the religiosity of schools participating in student aid programs constitutionally irrelevant, its consideration is constitutionally forbidden.”
Now that both sides have had the opportunity to present initial briefs, the Colorado Supreme Court will decide whether to take up the case against CSP at some point later this year.