In oral arguments tomorrow in the case of Espinoza v. Montana, the US Supreme Court will hear a direct challenge to the constitutionality of the latter-19th century’s notoriously anti-Catholic—nowadays anti-religion—“Blaine Amendment,” of which 38 states still have some version. The immediate issue concerns Montana’s Blaine Amendment and the state funding, directly or indirectly, of private schools, including religious schools.
In 2015, the Montana state legislature enacted a tax credit whose purpose was “provide parental and student choice in education with private contributions through tax replacement programs.” The programs allow individual taxpayers a state tax credit up to $150 for donations to non-profit Student Scholarship Organizations, which then provide scholarships to students attending private, including religious, schools. Thus, the program was deliberately fashioned to have two levels of choice—low-income parents’ choice of private schools and then the choice by non-profit scholarship organizations to provide scholarships to the children of those parents. The purpose was to emphasize private, parental choices over the acts and more general intentions of government.
The legislation also stated that the program had to be administered in compliance with the language in the Montana state constitution, which prohibits state and local programs from making “any direct or indirect appropriation or payment to aid any church [or] school . . . controlled in whole or in part by any church, sect, or denomination” (emphasis added). Although the legislation did not include the word “Blaine,” this state constitutional language is Montana’s version of that amendment. The Montana Department of Revenue took it upon itself to decide that the program was in violation of the state constitution.
That decision has been challenged by three mothers whose children attend a private Christian school and who contend that they have been denied the benefit of the program because of their religion. They allege federal constitutional violations of the Free Exercise and Establishment Clauses and of the Equal Protection Clause.
Completely avoiding the word “Blaine,” the Montana Supreme Court overturned the whole new statute, that is, pertaining to secular-private schools as well as religious schools. Thus, in stating that different purposes of the statute could not stand alone, that court attempted to eliminate an argument that one class of potential recipients, religious parents, had been singled out and discriminated against. With the program no longer in existence, the court maintained that there was no longer a harmed victim who had standing.
Nevertheless, the Montana Supreme Court of necessity had to go forward with a defense of the “no aid” language of Montana’s constitution. It ruled that the now-overturned program had had the purpose of “indirectly” funding religious schools, which was forbidden by the “no aid” language of the state constitution. In reaching that conclusion, the Montana high court said that the language of the state constitution controlled and was sufficient to resolve the case. Saying that “we need not address federal precedent,” the court engaged in almost no analysis of the federal Constitution and relevant Free Exercise and Establishment cases. The court held that “a state’s constitutional prohibition against aid to sectarian schools may be broader and stronger than the First Amendment’s prohibition against the establishment of religion” and explicitly said that it was “not necessary to consider” Establishment Clause cases. The court did not even mention the Trinity case (below) at all or speak of a Blaine amendment.
Blaine amendments and constitutional choice in education
Originally placed in the state constitution in 1889, Montana’s Blaine Amendment was reinforced by a state constitutional convention in 1972. The state supreme court made much of that reinforcement, but, as already said, did not use the word “Blaine.” In the late 19th century, as part of a pervasive national reaction to Catholic immigration, Congressman James G. Blaine of Maine, with the support of President Ulysses S. Grant, proposed a federal constitutional amendment requiring the states to “establish and forever maintain free public schools” and preventing the use of public funds “directly or indirectly” from going to “any religious sect or denomination.”
The word “Catholic” was not in the text of the amendment, and the amendment further prohibited the teaching of not only “religious” tenets but also “atheistic or pagan” tenets in public schools. The amendment passed in the House but failed in the Senate, whereupon 40 states then amended their state constitutions with some version of the amendment. Today, some 38 states still have their own versions.
Two federal precedents controlling Espinoza
The Montana case involves a choice between two precedents. The issue in the Free Exercise case of Locke v. Davey (2004) was a Washington state college-scholarship program for achieving-but-poor students that could be used at public, private, or religious colleges but could not be used by any individual student studying theology. In a 7-2 decision authored by Chief Judge Rehnquist, the Court upheld the program and said that the state had “merely chosen not to fund a distinct category of instruction” which did not imply a larger “animus towards religion.” There is an American tradition of not using public funds “to support the ministry” Rehnquist said, which was part of the original—not 19th century—American consensus about prohibiting the establishment of religion. It is not based on hostility to religion. And the court specifically held that the specific Washington scholarship program was not linked to that state’s Blaine amendment.
In Trinity Lutheran Church v. Comer (2017), a Free Exercise case decided by a 7-2 margin with only Justices Ginsburg and Sotomayor in dissent, a Missouri church submitted an application to a state public-maintenance program for the repaving of its playground. The state turned the church down on the basis of its own version of the Blaine amendment. But the majority opinion by Chief Justice Roberts avoided the state constitutional question and focused solely on the policy decision of the state office that disapproved the grant to the church. “Blaine” was never mentioned in the decision. The Supreme Court held that Missouri could not require a church “to renounce its religious character in order to participate in an otherwise generally available public benefit program for which it is fully qualified.” Roberts distinguished Locke by stating that Trinity Lutheran had been denied Free Exercise of Religion because it was a church, but the denial of theology coverage in Locke only concerned an activity, that is, of what complainant Davey had “proposed to do.”
The three suing plaintiff parents in Espinoza, two of whom are single moms, are of modest financial means; their children attend the same Christian school. They make the specific argument in the Supreme Court that Montana’s Blaine Amendment, part of its constitution, is itself unconstitutional and that Trinity’s Free Exercise conclusion controls. The Montana Supreme Court decision, they argue, has endorsed discrimination on the basis of “religious belief,” a violation of the Free Exercise Clause. And by allowing scholarship money to go to secular private schools, but not religious schools, the Montana constitution violates the federal Equal Protection Clause as well.
In opposition and characterizing the Montana Supreme Court decision as one in agreement with the United States Supreme Court that a state may support non-religious education while declining to support religious education, Montana argues to the Court that Locke should predominate over Trinity and says that the Montana high court has solved the problem by eliminating the possibility of disparate treatment of religious schools. Thus, there is no longer a case or controversy. Montana points out that 37 states currently have Blaine amendments. Concerning the state constitution, the state argues that federalism and “state sovereignty” allow it to bar taxpayer support of religious institutions, about which the Free exercise and Establishment Clauses “say nothing.” And: “Unlike playground resurfacing [in Locke], such funding for religious education lies at the core of constitutional no-aid principles.”
The development of constitutional “private choice” in education
Three contemporary decisions of the Supreme Court demonstrate that the constitutional “wall of separation” between church and state is not as “high and impregnable” (Everson 1947) as previously thought—at least with respect to state legislation having to do with education.
In Mueller v. Allen (1983), the Supreme Court, in a 5-4 vote, upheld a new Minnesota statute allowing a state-tax deduction for tuition, books, and transportation to parents whose children attended private, including religious, schools. Writing for the slim majority, Chief Justice Rehnquist said that the statute had the secular purpose of ensuring “an educated populace,” and did not “excessively entangle” the state in religion because a section of the law itself already excluded the providing of books having to do with religious doctrine and worship to private schools. The deduction was available to “all parents,” religious or not, and did not violate the Establishment Clause. Blaine was not an issue in the case. In handing down this decision, the Court overturned its prior decision in Committee for Public Education & Religious Liberty v Nyquist (1973) ten years earlier, in which it had ruled unconstitutional a New York law providing tuition reimbursement and tax relief for low-income parents of children attending primarily Catholic schools.
In Mitchell v. Helms (2000), the Court held by a 6-3 vote that the Establishment Clause had not been violated by Louisiana’s application of a federal-state education funding program for books, computers, and other educational materials to religious as well as other private schools. Writing for the Court, Justice Thomas pointed out that the language of the federal enabling statute had itself explicitly required that the program must be conducted in a way that was “secular, neutral, and non-ideological.” The program was based on parents’ “private choices” of religious schools, Thomas held, not a government intention to promote or establish religion. It was neutral as to any religious “indoctrination” because the choice of attendance at eligible schools is by any parent, regardless of belief. And was provided to all parents:
if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose…then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose.
Thomas reviewed the history of Blaine amendments and said that they had been “born of bigotry.”
Finally and most pertinently, in Zelman v. Simmons-Harris (2002), the Court, by a 5-4 vote, decided that an Ohio educational voucher program did not violate the Establishment Clause. The main purpose of the program was to give educational choice to low-income parents, and eligibility was determined by financial need. In speaking for the Court, Chief Justice Rehnquist, incorporating Mueller, permanently changed the constitutional language in the long line of education cases, only some of which have been discussed herein, from “government aid to religion” to public statutory decisions to endorse “true private choice in education”:
the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.
This was not a Blaine case.
So, we shall find out in Espinoza not only whether the Supreme Court will rule in favor of a constitutional “private choice” based on neutral, non-discrimination principles as in Trinity and Zelman, but also how it will deal with the only full-scale attack on state Blaine amendments that it has ever had the occasion to consider.
In Espinoza, the United States Justice Department has filed a vigorous brief harshly criticizing both the origin and continuing viability of Blaine amendments and in support of the three plaintiff moms and their free exercise of religion. This continues a pattern of the Trump Justice Department. In American Legion v. American Humanist (2019), the “peace cross” case, the Department argued against the allegation that the commemorative cross on public land violated the Establishment Clause. In Masterpiece Cakeshop v. Colorado (2018), the Department supported the Free Exercise rights of the baker. National Institute v. Becerra (2018), the case in which California required the content of speech by pregnancy-counseling centers, was decided based on freedom of speech, but the center had also alleged a Free Exercise violation. The Department supported the centers in their free speech argument.
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