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Can Blaine’s Descendants Block School Choice?

Last Wednesday, the United States Supreme Court heard oral arguments in Espinoza v. Montana Department of Revenue. The case has many moving parts, but at its core, it requires justices to determine if a state may discriminate on the basis of religion. The litigation centers on Montana’s Blaine Amendment—a constitutional amendment which forbids state funds from going to religious organizations; but this is a Blaine Amendment with an interesting twist.

Blaine Amendments: Born in Anti-Catholic Bigotry

In his wonderful book Separation of Church and State, Philip Hamburger demonstrates that anti-Catholic animus contributed significantly to the post-Civil War movement to separate church and state. As I have noted in this space, in the 19th century, this separation was usually between states and “sectarian” Catholic institutions and programs. “Non-sectarian” Protestant institutions and programs were largely exempt.

At the national level, the most notable manifestation of this anti-Catholic animus was the constitutional amendment proposed by Representative James Blaine (R-Maine) to prevent, among other things, public funding of schools “under the control of any religious sect.” Proposed in 1875, the amendment passed overwhelmingly in the House but did not receive the necessary two-thirds majority in the Senate. However, many states soon amended their constitutions to include similar amendments, and Congress sometimes required states admitted to the Union after 1875 to include Blaine Amendments in their constitutions. Such was the case with Montana.

Montana’s 1899 constitution contains a Blaine Amendment that stipulates:

The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.

There are excellent reasons to conclude that anti-Catholic animus was a driving force behind this amendment. But here is the twist: in 1972, Montana held a convention that revised its constitution, and the state’s voters approved it in the same year. In doing so, they reauthorized the amendment, adding only a line stipulating that it “shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.” There is little evidence that these convention delegates or voters were motivated by anti-Catholic animus.

Discriminating Against Religious Schools

Espinoza v. Montana involves a 2015 program created by the Montana legislature “to provide parental and student choice in education.” It allowed citizens and businesses to make donations to organizations that would then provide scholarships to students attending private schools. Donors received a tax credit equal to the amount they donated—up to a limit of $150 per year. Students attending 13 private schools, 12 of which are religious, benefited from this program. Shortly after the program began, the state’s Department of Revenue determined that the use of these scholarships at religious schools violated the state’s Blaine Amendment. Parents of students participating in the program appealed this rule to the Montana Supreme Court, which invalidated the entire program because of this amendment.

In oral arguments, Justice Kavanaugh noted that Blaine Amendments were rooted “in grotesque religious bigotry against Catholics.” Adam Unikowsky, who argued on behalf of the state, agreed that “in the 1880s, there was undoubtedly grotesque religious bigotry against…Catholics.” However, he contended that when the amendment was reauthorized in 1972 that there was no “evidence whatsoever of any anti-religious bigotry.”

Justice Sotomayor made a similar point, contending that the Blaine Amendment’s 1972 advocates were joining:

a long history of people [including the founding fathers and James Madison] who for non-discriminatory reasons, but for reasons related to their belief in the separation of church and state…have taken the position that the state should not give money to religious institutions.

Supporters of the 1972 amendment may not have been motivated by anti-Catholic animus, but neither were they principled supporters of church-state separation. Recall that they added a provision to the 1899 amendment that permits federal funds flowing through the state to go to private schools. (As an aside, Justice Sotomayor, like other separationist justices, mischaracterizes the founders’ approach to church-state relations. I have addressed such arguments in this space and in Did America Have a Christian Founding?)

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, seven justices agreed that a state commission acted with such obvious animus against a baker’s religious convictions that it violated the First Amendment’s Free Exercise Clause when it fined him for refusing to provide a cake for a same-sex wedding celebration. Presumably, a state constitutional provision motivated by similar animus would be likewise unconstitutional. This logic would invalidate many Blaine Amendments, but perhaps not the one in question as justices might conclude that its reenactment in 1972 “cleanses” it from its unsavory origins.

But is discrimination on the basis of religion permissible in the absence of animus? In the 2017 case of Trinity Lutheran v. Comer, the Supreme Court ruled 7-2 that Missouri’s Blaine Amendment could not be used to prohibit a Lutheran preschool from participating in a state program that provides safe playground surfaces. Although the anti-Catholic origins of the Blaine Amendments were raised in briefs filed in that case and in its oral arguments, they played no role in the Court’s opinion. Instead, the Court held that the Free Exercise Clause does not permit a state to discriminate on the basis of religion unless it has a compelling interest to do so

This opinion was referenced multiple times in the Espinoza oral arguments. Indeed, Richard Komer, representing the parents, opened by observing that “the Blaine Amendment discriminates against religious conduct, beliefs, and status in violation of the free-exercise clause under Trinity Lutheran.” Jeffrey Wall, Principal Deputy Solicitor General of the United States who argued as an amicus in favor of the parents, regularly referenced the decision as well.

Mr. Unikowsky understandably tried to distinguish the present case from Trinity Lutheran, most notably by arguing that the latter case involved a “completely non-religious purpose” whereas Montana is refusing to fund a religious activity. This distinction did not seem to convince justices Alito and Kavanaugh who observed, respectively, that “it’s hard to see that that’s much different from Trinity Lutheran” and “isn’t [Montana’s action] a straight violation of the Trinity Lutheran principle?” Similarly, in their concurrence in Trinity Lutheran, Justices Gorsuch and Thomas called into question the usefulness of this sort of distinction.

Based on their comments in this case and their votes/opinions in Trinity Lutheran, it seems likely that Justices Alito, Kavanaugh, Gorsuch, and Thomas will extend this case to prohibit states from discriminating against religious schools. Chief Justice John Roberts’ opinion in Trinity Lutheran (in)famously limited the decision to religious discrimination “with respect to playground resurfacing.” He will now have to decide if states can discriminate on the basis of religion with respect to schools. It seems unlikely that he will answer that question with a “yes.”

Perhaps seeing the handwriting on the wall regarding the merits of the case, Justices Ginsburg, Sotomayor, and Kagan pushed Mr. Komer repeatedly on whether the petitioners had proper standing to challenge the Montana Supreme Court’s decision. The parents, they suggested, are not the proper parties to bring the case as it was the children and/or schools that received the benefits. Moreover, they noted that the parents in question are not taxpayers.

In a similar vein, Justice Breyer seemed to sense that the state would lose on the merits and so appeared to be looking for a way to limit the scope of the decision. He repeatedly asked if a state would have to fund religious schools if it also funded public schools. Both Mr. Wall and Mr. Komer insisted that they were not seeking this result.

The Bigger Picture

Justice Breyer’s concern points to a broader problem. Public schools today are not religious. Many states provide support to only public schools and, in some cases, secular charter schools. These arrangements clearly discriminate against families who believe that they have an obligation to provide a religious education for their children. Even if this is constitutionally permissible, it is unjust.

An ideal but unlikely solution to this problem would be for states to abolish public schools and provide parents with vouchers to permit them to send their children to schools of their choice. A less ideal but more realistic solution is for states to maintain a system of public schools but to adopt programs that make it possible for parents to send their children to secular or religious private schools. Montana, like 18 other states, adopted a plan to do just that.

It is not unreasonable for the Montana Supreme Court to conclude that the state’s scholarship program violates the state’s Blaine Amendment, but there is every reason to conclude that the State’s Blaine Amendment violates the Free Exercise Clause. States should not be able to discriminate on the basis of religion unless they have a compelling reason to do so, and there is certainly no compelling reason in this case.

Reader Discussion

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on January 29, 2020 at 08:28:11 am

“Many states provide support to only public schools and, in some cases, secular charter schools. These arrangements clearly discriminate against families who believe that they have an obligation to provide a religious education for their children. Even if this is constitutionally permissible, it is unjust.”

I don’t subscribe to religious nonsense and my taxes, anyone’s taxes, should in no way fund any religious institution in any capacity — which includes the indirect defunding of public education.

If one want to send one’s kids to a private school, he/she can pay for it. Extracting money away from public education is a blatant misuse of those funds.

As an example, I don’t have children: yet I continue to pay that portion of taxes to support public education. It’s essentially an insurance policy, like paying for police and fire services. So everyone is on the hook.

But if money can be diverted, then where’s my tax credit? Do I get a refund for not adding another human into the system? Where does it end.

Citizens are free to believe what they want, and they’re free to pay for it themselves. Our taxes should go toward public services only and not into private institutions. That tax credit, small as it is, defunds public education.

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Dave137
on January 29, 2020 at 09:31:58 am

Professor,
To quote the Bard, “the good that men do is oft interred in their bones, the evil lives long after them.”
More know the “Blaine Amendment” than “My Twenty Years in Congress”.
Pity.

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Sander Fredman
on January 29, 2020 at 09:51:08 am

"Do I get a refund for not adding another human into the system? "

No, but I will send you a monthly stipend so long as YOU do not have children. " It’s essentially an insurance policy."

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gargamel rules smurfs
on January 29, 2020 at 11:39:05 am

Mr. 137, even if you are not religious, presumably subscribe to something akin to the Golden Rule. If public schools were religious schools, as they once were, wouldn't you want secular parents to at least have the option of sending their children to secular schools? And wouldn't vouchers make this a realistic possibility for many parents who couldn't otherwise afford such schools?

Nota bene, I don't want public schools to be religious schools. I am arguing for pluralism.

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Mark David Hall
on January 29, 2020 at 12:16:11 pm

Powerful retort, gargy. How many wasted minutes did you spend on that gem.

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Dave137
on January 29, 2020 at 12:57:19 pm

Mr Hall: I appreciate your questions.

I would simply say that religion borrows its morality, and immoralities, from us. Or as Hitchens wrote, "Human decency is not derived from religion. It precedes it."

In terms of "subscribing" to a Golden Rule, well, I suppose. But I would frame it differently: such a conception is more self-evident than instructed.

I don't like vouchers because it removes the aforementioned educational insurance-policy. Again, we pay for the fire department even though most of us will never use it. So if someone decides not to send his/her kid to a public school, that doesn't then give them the right to reallocate that money, albeit in the form of a credit.

For example, if I live in a city and never take public transportation, why should I contribute to that portion of public infrastructure? Shouldn't I get a voucher so I can put that money toward my own vehicle? The analogy is a stretch, but you get the idea.

Employing vouchers to send students elsewhere undermines investment in that public system. Local and state governments have less revenue for its own programs and schools, and it forces the rest of us ultimately to subsidize those revenue losses. Meanwhile the private schools that benefit from that funding have no strings attached, even though it's technically public money.

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Dave137
on January 29, 2020 at 13:13:47 pm

Oh, minutes are never wasted, especially if one is enjoying those tax dollars that a poor bloke like you is forced to pay for someone else's kids or retired buggers.

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gargamel rules smurfs
on January 29, 2020 at 14:15:38 pm

Simply put:
1) Everyone pays for things that they may not like / agree with it.
2) That is the price of living in a political community.
3) Let us suppose that my neighbor receives a tax credit for charitable contributions to, let us say, Planned parenthood. Clearly, a service I would never use (wrong plumbing, as it were). His tax credit may ultimately cause my taxes to go up. Fair?
4) My neighbor also makes a contribution to a local college wherein we find such educational offerings as Race, Gender, Critical Legal Studies,LGBTQ Studies etc. I oppose all these educational fantasies. My taxes will go up as he receives a tax credit for his contribution. Fair?

It is well within the power of the State's Taxing Power to set taxes, define what is and is not taxable, i.e., charitable contributions such as the private school donations or the Planned Parenthood ones I cite above. In both instances some may be offended by it. One could cite a rather long list of "offensive" tax law.

It would appear that your objection stems from the fact that you don;t like any "religious nonsense." Heck, there is far more nonsense being supported by our Legislatures than can be written about in a blog post.
Are we to protect each and every citizen from all forms of "nonsense."

I think not!

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Guttenburgs Press and Brewery
on January 29, 2020 at 14:46:23 pm

I agree that governments fund a great deal of nonsense, but the courts still hold them accountable to some constitutional lines (alas, Article I, Section 8 is not among them). Absent a compelling reason, they may not discriminate on the basis of race or religion.

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Mark David Hall
on January 30, 2020 at 14:05:48 pm

1. I share the view that government should not discriminate on the basis of religion. Ergo all kinds of laws--501(c)(3) status, the Religious Freedom Restoration Act, etc.--should be regarded as unconstitutional. That doesn't mean that government cannot grant higher scrutiny for government policies that burden religion; it merely means that government should grant higher scrutiny for ALL laws. I suspect this would prove to be an impractical burden--but so be it.

2. I also regard the Blaine Amendment as suspect. But SCOTUS (to my dismay) upheld such an amendment in Locke v. Davey, 540 U.S. 712 (2004) by 7-2.

Moreover, in the current case (Espinoza v. Montana Department of Revenue), we're not really dealing with discrimination of religious vs. non-religious, but of public vs. private. That's because the Montana Supreme Court held that NO private schools could benefit from the program, whether public or private. And it is the state supreme court that is the authoritative source for interpreting state law. In short, I favor finding a case for striking down the Blaine Amendments--but this isn't that case.

3. There are sound (basically libertarian) reasons favoring school vouchers that are unrelated to religion. We don't have to embrace those reasons, but we should at least acknowledge that the dispute about vouchers is not merely a dispute about religion.

4. Yes, school vouchers might "dilute" the financial support for public schools--much like Section 8 vouchers might undercut the market for public housing projects. But when you eliminate public housing projects, that concern disappears. Likewise, if we convert public schools into private schools (ok, except maybe when government is the provider of last resort), then concern about the financial consequences of vouchers might similarly disappear.

The bigger challenge for vouchers is in defining the services we'd expected to receive, how we would test to ensure that we were receiving them, and the consequences for breach of contract. Clauses such as "willing to accept special needs students" and "will not discriminate on the basis of suspect categories" might be deal-breakers for many private schools.

I don't mean to say that every jurisdiction would have to include such clauses. But in the absence of SOME criteria, we'd have little basis to stop parents from simply declaring themselves a school and pocketing the money. Yet once we opened this can of worms to public discourse, I'd expect the feuds ("I heard what Jefferson said about the Bible, and I don't want ANY mention of him in the classroom!") to be endless. See, for example, the disputes over Common Core.

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nobody.really
on January 30, 2020 at 19:50:57 pm

The primary issue is the siphoning of public money into, yes, religious schools. It's not a policy dispute; it's about the constitutionality of forcing the public to subsidize religion — to subsidize organizations that certainly fail to contribute that very taxation — even if it's in the form of a credit.

"No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods..."

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Dave137
on February 03, 2020 at 07:27:52 am

Another take:
https://religiondispatches.org/school-voucher-scotus-case-isnt-about-choice-its-about-coerced-support-for-religion/

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Dave137
on February 03, 2020 at 07:30:07 am

More wasted time.

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Dave137
on February 05, 2020 at 05:24:50 am

I question the equation of anti-Catholicism in the 19th century with bigotry. The teaching of the RCC in that era is comparable to the Salafists today. Would people be bigoted if they disliked tax money going to schools that praise Muslim theocracies?

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Jr
on February 13, 2020 at 05:57:03 am

[…] Supreme Court has recently heard arguments in Espinoza v. Montana Department of Revenue, a potentially monumental case concerning the Free Exercise Clause. The case concerns the […]

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The Political Economy of the Free Exercise Clause
on May 20, 2020 at 14:42:41 pm

A stunning new report from the https://joemiller.us/ New York Post highlights what appears to be a very troubling agenda in one of New York City’s taxpayer-funded public preschools: Encouraging children to choose their genders

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Elisabeth

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.