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21 U. Pa. J. Const. L. Online 1 (2018-2019)

handle is hein.journals/jclon21 and id is 1 raw text is: DOWN BUT NOT OUT: TRiN/TYLUMTERANS IMPLICATIONS FOR STATE NO-AID PROVISIONS AnthonyJoseph * INTRODUCTION [Tihe exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution... and cannot stand. The Court's sweeping language in its recent T'unityLutheran decision has been called a new constitutional rule' and lauded as a landmark victory by proponents of religious liberty.' On the other side of the discussion, constitutional law scholar Erwin Chemerinsky described the decision as troubling: a dramatic change in the law that likely is going to require governments to provide much greater support for religious institutions than ever before. The decision could also substantially limit state sovereignty in religious establishment. As Justice Sotomayor briefly alluded to in her dissent,' Triniv Luthemn could be the death knell for antiestablishment clauses on the books in nearly forty states: no-aid provisions that expressly restrict government finding to religious entities. In contrast, this paper proposes that state no-aid provisions can in fact be reconciled with the distinctions in Triity Lutheran. Lower courts and legislatures alike should recognize the nuances in these distinctions before radically extending taxpayer-funded benefits to religious institutions. This paper proceeds in three parts. First, Part I gives background on the federal Religion Clauses and no-aid provisions in state constitutions. Next, Part II details the TrinityLutheran decision. Finally, Part III first provides a legal and normative analysis of the Court's decision, and then discusses the implications for state no-aid provisions. J.D., 2018, Chicago-Kent College of Law. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2025 (2017). 2 William E. Thro & Charles J. Russo, Odious to the Constitution: The Educationalnmpcations of Trinity Lutheran Church v. Comer, 346 EDUC. L. REP. (West) 1, 1 (2017). Press Release, U.S. Senator for Texas Ted Cruz, Sen Cruz: Trinity Lutheran Decision Is Landmark Victory for Religious Freedom (June 26, 2017), https://www.cruz.senate.gov/?p press-release&id 3204. Erwin Chemeriusky, W4airing for Gorsuch: October Term 2016, 20 GREEN BAG 2D 351, 358 (2017). THnityLutheran, 137 S. Ct. at 2037-38 (Sotomayor, J., dissenting).

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