I come not to argue that we are ill-founded with regard to religious liberty, but to note certain limitations of principles present at our founding.
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.