On June 30, 2020, the Supreme Court reiterated the fact that the United States Constitution prohibits discrimination based on religion. In Espinoza v. Montana Department of Revenue,the Court held that a Montana no-aid provision denying state sponsored scholarship funds to religious schools was unconstitutional. Such so called “Blaine amendments” (which deny payments from any state funds to any religious institutions) in many state constitutions received a huge blow by this impactful decision. Because of the Court’s ruling in Espinoza, states are no longer allowed to prevent families who send their children to religious schools from participating in school choice programs. This is what the Montana no-aid provision restricted and is one of the main functions of Blaine amendments. This case is not only a victory for families who want a religious education for their children, but it is also a substantial victory for religious freedom.
“Little Blaine Amendments,” as Justice Alito calls them in his concurrence in the Espinoza decision, were modeled after the failed Blaine Amendment to the U.S. Constitution of 1875. Named after House Speaker James Blaine, the attempted amendment to the Constitution resulted from deep prejudice against Catholic immigrants. If the Blaine Amendment had passed, it would have restricted all Catholic and other religious schools from receiving government aid. After this Amendment was struck down in the Senate, many states created their own “little Blaine Amendments” to their state constitutions. The Montana no-aid provision at issue in Espinoza is an example of a state Blaine amendment. It orders that the state “shall not make any direct or indirect . . . payment from any public fund . . . to aid any church [or] school, . . . controlled . . . by any church, sect, or denomination.”
In 2015, Montana enacted a scholarship program for students attending private schools. This program gives a tax credit to any taxpayer who donates to a student scholarship organization. These organizations in turn use the donations to award scholarships to students. After the program was enacted, the Montana Department of Revenue announced “Rule 1,” a rule that prohibited families from using the program’s scholarships at religious schools. The Department stated that the rule was needed to accommodate Montana’s no-aid provision. Three mothers applied for scholarships so that their children could continue to attend a private Christian school. When they were denied these scholarships because of Rule 1, they sued the Montana Department of Revenue challenging the Rule.
Last fall, the National Legal Foundationfiled a friend-of-the-court brief in support of the three mothers. We filed our brief on behalf of 131 current and former state legislators. Espinoza’s dealings with state Blaine amendments is of important interest to these legislators because the amendments impede their ability to do their jobs. We made two points.
First, the Blaine Amendments carry a shameful origin and history in American legislation. And the Montana Constitution’s no-aid provision is no exception. Previously seven current and former justices have addressed the damaging history of these amendments. For example, in Mitchell v. Helms,Chief Justice Rehnquist and Justices Thomas, Scalia, and Kennedy stated that nothing in the Establishment Clause requires the exclusion of religious schools from aid programs, and therefore “[t]his doctrine, born of bigotry, should be buried now.”
We argued that Montana’s no-aid provision is indeed a Blaine amendment. The Court in the 2004 case Locke v. Davey, which upheld the constitutionality of excluding students pursuing devotional theology degrees from receiving funds from publically funded scholarship programs, recognized that the enabling Act of 1889 required the Washington state constitution to include a Blaine amendment. Importantly, the Act mentioned in Locke was also the Act that enabled the state of Montana to enter the Union. Furthermore, Montana’s no-aid provision—its Blaine amendment—is even more hostile to religious institutions than Washington state’s amendment. When the Blaine Amendment of 1875 was debated in the Senate, Senator Frelinghuysen enumerated what a Blaine amendment should contain: six anti-Catholic provisions. Montana’s no-aid law, NLF’s brief pointed out, incorporates five of Frelinghuysen’s provisions. This Montana’s no-aid law is without a doubt a Blaine amendment. Yet, it is not just Montana’s Blain amendment that is an issue: all Blaine amendments are problematic for state legislators.
Thus, our brief argued secondly that state Blaine amendments impede the efforts of state legislators who seek to pass beneficial legislation for their citizens. Legislators who are opposed to various educational aid programs will commonly use Blaine amendments to intimidate other legislators from promoting these programs. They claim that these programs would be subject to lawsuits and be unconstitutional because of the state Blaine amendments and the Establishment Clause. The NLF listed examples in which Blaine amendments were used to threaten legislative efforts dealing with scholarship programs, vouchers, and tax credit programs in many states. This legislative manipulation is only “the tip of the iceberg,” the NLF’s brief stated. Even many national organizations invoke Blaine amendments in an attempt to oppose educational choice.
The NLF concluded our brief by arguing that a Supreme Court ruling that Montana’s Blaine amendment is unconstitutional would be favorable in many ways. All thirty-seven states suffering under these amendments would benefit, and legislators would be freed to engage in discussions concerning what educational legislation should be passed without the hindrance of Blaine amendments.
The Court did just this. Chief Justice John Roberts, writing the opinion for the Court stated that the Establishment Clause is “not offended when religious observers and organizations benefit from neutral government programs.” Furthermore, he stated that the governmental support from Montana’s scholarship program “makes its way to religious schools only as a result of [people] independently choosing to spend their scholarships at such schools.” Montana’s Blaine amendment excludes benefits from families who chose to send their children to these religious schools solely because the institutions are religious. Instead of preventing an establishment of religion through public funding, Montana’s provision violates the Constitution’s Free Exercise Clause. Thus, in a five-four decision, the Court ruled that the Montana no-aid provision is unconstitutional.
“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” Chief Justice John Roberts stated in the Court’s opinion. This quotation eloquently encapsulates the importance of Espinoza. The Founding Fathers established the importance of religious freedom in America when they penned the First Amendment. It is refreshing to see the Court uphold the Constitution in the Espinoza decision by protecting the free exercise of religion.
With every brief that the NLF submits to the Court, we are arguing for the constitutional rights of Americans. In Justice Alito’s concurring opinion on Espinoza, he cited multiple briefs and acknowledged their arguments against the constitutionality of Montana’s Blaine amendment. The NLF’s brief on behalf of the state legislators was one of those Justice Alito cited. It is through work of this kind that the NLF and other organizations are making a difference for religious rights and freedoms in America.