Yesterday, we talked Dougco. Because I’m a fan of loosely connected thematic writing, we’re going to do the same today in a more peripheral sense. Don’t worry, today’s post will include markedly less discussion about the nether regions of the male body.
Some of you may remember that there was a pretty important—and pretty disappointing—Colorado Supreme Court decision about Dougco’s local voucher program last June. The program was struck down under an incredibly broad interpretation of our state’s Blaine Amendment. The decision was so sweeping, in fact, that Justice Allison Eid had this to say about it in a dissenting opinion:
Today, the plurality interprets Article IX, Section 7 as prohibiting the expenditure of any state funds that might incidentally or indirectly benefit a religious school. This breathtakingly broad interpretation would invalidate not only the Choice Scholarship Program (“CSP”), but numerous other state programs that provide funds to students and their parents who in turn decide to use the funds to attend religious schools in Colorado. The plurality’s interpretation barring indirect funding is so broad that it would invalidate the use of public funds to build roads, bridges, and sidewalks adjacent to such schools, as the schools, in the words of the plurality, “rely on” state-paid infrastructure to operate their institutions.
Yikes! But things weren’t all bad. The Colorado Supreme Court’s decision to strike down the program opened a potential pathway to challenging discriminatory Blaine Amendments across the country before the United States Supreme Court (SCOTUS). And sure enough, Dougco appealed the decision, this time under the legal guidance of legal superstar and former U.S. Solicitor General Paul Clement.
Getting SCOTUS to grant a writ of certiorari, or “cert” for short, is tough. The high court receives about 8,000 applications for cert each year, of which it grants roughly 80. In other words, SCOTUS takes up approximately one percent of the cases it reviews each year. Obviously, this indicates that the court is a wee bit selective about the cases it takes. So, as compelling as Dougco’s case is, the odds of it reaching SCOTUS have always been long. We won’t know for sure whether SCOTUS will hear the case until sometime next month. (NOTE: The Supreme Court’s website update its figures for cert applications and acceptance after publication of this blog. The numbers above reflect the revised figures.)
In the meantime, however, SCOTUS has decided to talk about Blaine Amendments by taking up a case out of Missouri. Continue Reading »