There is every reason to conclude that Montana's Blaine Amendment violates the Free Exercise Clause.
The history of American public education may be told as a history of gradual secularization driven not by religious neutrality but religious enthusiasm.
In the American colonies and well into the nineteenth century, the churches took primary charge of education. Even where public schools were established, their curriculum was distinctively Christian. Early nineteenth century Massachusetts schools were at first colored by a kind of pietistic Calvinism, after which there was an effort to diminish their distinctive Congregationalism. Horace Mann, that emblem of the early development of the government school, himself supported “religious instruction in our schools to the extremest verge to which it can be carried without invading those rights of conscience which are established by the laws of God and guaranteed by the Constitution of the State [of Massachusetts].”
Church education was thus fitfully replaced by varieties of government sponsored and administered Christian education. As time passed, the quality of the religious instruction became progressively diluted—less religiously specific, certainly, but not less specifically religious. Justice Frankfurter once praised the public school as “a symbol of our secular unity,” but he might have more precisely described it as a symbol of our religious division. The increasing secularity of public education grew not so much from the struggle between rival advocates of secular and religious education as from disagreement about the properly religious character of the government school—about the sort of religion needed to sustain the republic.
In the contemporary period, as the liberal Protestantism of the public school has been drained of any vestigial Protestantism, there remains only the liberalism as the embodiment of the nation’s civic ideals. Like all government organs, public schools are now bound by the Supreme Court’s constitutional injunction not to “endorse” religion in ways that make non-adherents feel like political outsiders (at least, so the political insiders have it). The secular projects and aspirations of the liberal state sustain the American polity.
There is a parallel history concerning the American state’s posture toward religious schools, the chief case of which is the Catholic parochial school. Catholics were driven by the government-endorsed Protestantism of the nineteenth century to adopt a separate system of privately funded schooling that by the mid-twentieth century educated millions of students. Those that opposed this divergence believed—not without reason—that a uniform, government-endorsed Protestantism was an important force of American civic acculturation for the young.
They conceived a name for the separate Catholic system—“sectarian” education—and found champions in Ulysses S. Grant and James G. Blaine, Senator from Maine, Speaker of the House of Representatives, and a Republican candidate for president in the election of 1884, who pressed for a federal constitutional amendment explicitly forbidding any financial aid to “sectarian” institutions. This was done precisely in the name of the radical “separation of church and state”—not because amendment advocates like Grant and Blaine believed that the Constitution required separationism, but because they thought it didn’t. Though the federal amendment failed (passing in the House but falling in the Senate only two votes shy of the 2/3 required for constitutional amendment), proscriptions against the funding of “sectarian” schools found their way into many state constitutions in later years in so-called “Blaine Amendments.”
This failure of the federal constitutional amendment, in part, led those desiring a strong version of separationism to focus now on constitutional interpretation and invented genealogies concerning the Establishment Clause’s true or essential separationist principle. In time, this approach met with far greater success. Beginning in the late 1940s and until fairly recently, church-state separationism represented the Supreme Court’s favored approach to Establishment Clause issues involving government funding of religious institutions. Most recently, the Court has instead preferred a seemingly more egalitarian regime of “neutrality”—sameness of treatment for religion and non-religion. Direct and preferential aid to religious schools is not neutral. But indirect aid may be. Thus the Supreme Court has held that a municipality’s school voucher program, in which participants could spend government funds to send their children to parochial schools, reflected a neutral fiscal allocation—one that treated religion and non-religion equally and so neutrally under a system of “truly private choice.”
A recent decision by the Colorado Supreme Court, however, illustrates how decidedly partial an ostensibly neutral legal regime actually can be. Colorado’s Douglas County School District had instituted a program through which certain students accepted by private schools—religious and nonreligious—were eligible to receive a tuition scholarship. The money went to the students’ families, who would then pay it to the school they had chosen to attend. Roughly 93% of participating students chose to attend a religious school.
The key issue in the case was this program’s constitutionality under Colorado’s 1876 Blaine Amendment, enacted at the zenith of the controversy concerning the civic and religious character of public education and the government’s hostility toward Catholic education. Colorado’s version provides that no organ of the state
shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever.
The court interpreted this language as broadly as it possibly could to forbid any aid—direct or indirect—to “sectarian” institutions. It refused to consider the extensive history of the word “sectarian” in this context, instead referring to Black’s Law Dictionary to reach the willfully historically obtuse conclusion that “sectarian” is synonymous with “religious.” Yet not even its own preferred source supports that equivalence: Black’s Law Dictionary defines “sectarian” as “[o]f, relating to, or involving a particular religious sect; esp., supporting a particular religious group and its beliefs.” No matter: the text of the Amendment, said the court, unequivocally prohibits the use of any moneys that might even indirectly “support” or “sustain” religious schools by making it easier for students to attend. That interpretation, as the dissent points out, would invalidate state programs for the maintenance of basic infrastructure and safety measures applicable to all schools. Along the way, the court makes a hash of its prior decisions, purporting to distinguish another case in which it upheld a state grant to private religious undergraduate educational institutions so long as they were not “pervasively sectarian.” The exclusion of “pervasively sectarian” schools in a government-funding program passes Blaine Amendment muster, it seems, while the inclusion of “sectarian” schools does not.
Focusing on these details of Colorado law, however, obscures certain larger questions. If “sectarian” truly does mean “Catholic,” and even if it means, as Black’s Law Dictionary says, “of, relating to, or involving a particular religious sect,” then any state Blaine Amendment with this language would be subject to constitutional challenge under the Supreme Court’s free exercise law. “Sectarian” does not sound particularly neutral; or, to the extent it does, it sounds in the rather counterintuitive neutrality of state-endorsed religious hostility. Yet even this perspective on the question of neutrality passes over the colossal non-neutrality of the government’s systematic and exclusive funding of its own putatively religion-neutral schools, to the detriment of able students—many of them from poor and educationally underserved communities—who would greatly benefit from private religious schooling. Neutrality between religion and non-religion seems to demand a plainly partial allocation of resources. Or, one variety of government neutrality—no funding of religious schools—obstructs the achievement of another—educational opportunity.
The question of the place of religion in American educational life—whether in the nation’s public schools or in its position on private religious schools—will not be answered by neutrality talk, for the fundamental reason that nothing in the projects of American education is or ever has been neutral toward religion. From the very first, it was precisely the non-neutrality of the state toward religion that has been one of the prime catalysts of cultural and legal development in American education policy, public and private. There is an understandable tendency among some opponents of state Blaine Amendments such as Colorado’s to reduce them to simple expressions of non-neutral anti-Catholicism. Often they were that, but they were more.
To understand them merely in these terms—as lamentable examples of “discrimination”—domesticates them. It consigns them to a history from which we have happily progressed now that we have entered an epoch in which the making of discriminations of any kind is taboo. It puffs us up with the Whiggish certitude that to repudiate the Blaine Amendments is to rid ourselves decisively of the very real problem they addressed. That problem—how to foster through education the common civic culture upon which the American polity, even still, depends—does not vanish by easy, self-congratulatory resort to the voguish platitudes of antidiscrimination. The Blaine Amendments were woefully inadequate responses to that problem, but responses nonetheless. The empty bromide of religious neutrality is no response at all.
 As quoted in Leo Pfeffer, Church, State and Freedom 332 (1967).
 McCollum v. Board of Education, 333 U.S. 203, 217 (1948) (Frankfurter, J., concurring).
 Zelman v. Simmons-Harris, 536 U.S. 639 (2002).