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52 U. Rich. L. Rev. 887 (2017-2018)
Free Exercise and Comer: Robust Entrenchment or Simply More of a Muddle

handle is hein.journals/urich52 and id is 935 raw text is: FREE EXERCISE AND COMER: ROBUST ENTRENCHMENT OR SIMPLY MORE OF A MUDDLE? Mark Strasser * INTRODUCTION Several states are barred by their own constitutions from spend- ing public monies in support of sectarian institutions. The United States Supreme Court has manifested great ambivalence about the constitutionality of such limitations. Sometimes, the Court has im- pliedly endorsed them as a reasonable measure to assure that Es- tablishment Clause guarantees are respected. At other times, the Court has suggested that such limitations are constitutionally dis- favored, although the Court has not yet held that such amend- ments are per se unconstitutional. The Court's most recent deci- sion addressing state constitutional spending limitations, Trinity Lutheran Church of Columbia, Inc. v. Comer,I adds another layer of complexity and confusion to an already muddled jurisprudence. That decision, unless modified, could have surprising implications that the Court is avowedly unwilling to endorse. Part I of this article discusses both a former proposed amend- ment to the Federal Constitution, the Blaine Amendment (Fed- eral Blaine Amendment), that bans the use of public monies to support sectarian schools and several state constitutional amend- ments (State Blaine Amendments) that bar such expenditures. Part I also explains some of the difficulties in showing that these amendments were motivated by animus and why demonstrating such animus might not be sufficient to establish that such laws should be struck down as a violation of constitutional guarantees. Part II discusses the Court's inconsistent attitudes towards State Blaine Amendments, detailing some of the ways in which Comer makes a confusing jurisprudence even more confusing. Part II.A discusses Everson v. Board of Education,2 a seminal case that the * Trustees Professor of Law, Capital University Law School, Columbus, Ohio. 1. 582 U.S. -, 137 S. Ct. 2012, 2017 (2017). 2. 330 U.S. 1 (1947). 887