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Opinion: The Battle Over Blaine Amendments Heads Back to the States

Well, that was fast. On the heels of its decision yesterday in Trinity Lutheran v. Comer, the Supreme Court today granted cert to and  vacated state supreme court decisions out of Colorado and New Mexico that used Blaine Amendments to exclude religious schools from government aid programs.

In  New Mexico Association of Nonpublic Schools v. Moses, the New Mexico Supreme Court ruled in 2015 that a longstanding program through which the state lends textbooks to students attending public and private (including religious) schools violated state constitutional language prohibiting state aid from going to “sectarian” and “private” schools. It did so despite the fact that the program had operated in the state, largely without controversy, since 1891, and the fact that lower courts had rejected the challenge to the program, holding that the state’s Blaine Amendment should be interpreted consistently with federal Establishment Clause jurisprudence (under which textbook loans are clearly permissible).