The Supreme Court is scheduled to rule on a major case in June concerning religious freedom as applied to the education system. We address the background and predict the direction the Court will go with respect to this matter.

The matter, known as Espinoza v. Montana Department of Revenue, considers a state tax credit law that offered credit to companies and individuals that donate to private school scholarship funds. There are several private schools in Montana that would be classified as religious and would benefit from the program. The Montana Supreme Court ruled the scholarship aid program unconstitutional per the Montana state constitution because there was an opportunity for direct or indirect funding to religious schools.

The seminal issue in this case that the United States Supreme Court is tackling is:

“Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.”[1]

This case invokes a foundational issue of the history of state Blaine amendments and their anti-religious undertone, most specifically targeting Catholics.

What were the Blaine Amendments?

James G. Blaine was a prominent representative, senator, Secretary of State and later recurring presidential candidate in the 1870s and 1880s. While serving in Congress he supported President Grant’s educational policy initiative that emphasized state secular public schooling. This culminated in the creation of the proposed Blaine Amendment that sought to restrict the spread of parochial education as new Catholic communities began to form. It provided as follows:

“No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

Even though it was unsuccessful in being passed by Congress to be incorporated into the U.S. Constitution, many states chose to adopt a version of it in their respective state constitutions. The amendments served Blaine’s political purposes of attracting Protestants to the Republican party while feeding into the Anti-Catholic sentiment of the times. The main religious schools established at the time were Catholic, as are two-thirds of Montana’s private schools are today.

The Direction of the Court and Constitutional Considerations

Based on the lines of questioning posed at oral arguments[2], the final breakdown of this decision could be closer to 5-4, thus invalidating the Montana court’s decision and allowing the tax credit scholarship program to proceed. It is foreseeable that Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch and Justice Kavanaugh would vote to uphold the constitutionality of the program. Perhaps Justice Breyer or Justice Kagan may join as they did in the Trinity Lutheran[3] case, but this matter raises issues with a stronger connection to direct student educational opportunities rather than simply the more detached issue of private school institutional funding for school playground tire. A scholarship program for individuals that seek to attend private religious schools may prove to be a bridge too far for the liberal jurists.

Establishment Clause

The Establishment Clause provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The Court would be wise to consider the concept of what constitutes an Establishment. The tax credit for funding a scholarship for private education on its face does not constitute any Establishment of religion, rather it supports educational opportunities of individuals and their families that decide to embark on the path of private education. There is no requirement that the credit should only apply to Catholic schools or Protestant schools or Hebrew schools or Muslim schools or any other faith that serves as the basis of a private school.  One state religion is not specifically recognized within the definition of private parochial education. This is where the Blaine Amendment fails and should be re-evaluated as it does not have a firm basis under the U.S. Constitution.

Even if the state’s private schools are majority Catholic this does not constitute a basis to recognize Catholics as an establishment religion under the law. Nothing suggests that other faiths were prohibited for developing private schools in Montana and would not also be entitled to the benefits generated by the tax credit program. The Supreme Court has an opportunity to invalidate long embedded laws that have targeted faith-based entities in violation of the text and original public meaning of the Constitution. One could also argue that the broader question of direct vs. indirect funding to religious entities also warrants further consideration and discussion by the court and this case gives more substance to that debate. Furthermore, the concept of tax policy recognition of faith is not unfamiliar. There are tax exemptions and other policy nuanced privileges connected to religion and charitable giving on the national scale.

As discussed in prior pieces, when recognizing an “Establishment” we must look to the founding era of this nation and the many issues it was forced to consider from a religious standpoint. It was recognized that the Church of England played a role in the early colonial age of this nation for encouraging the migration of non-Anglicans to the New World. Religious freedom was a persuasive consideration for the early colonists as they sought to flee from England and the state-run Church of England that was not known to be tolerant of other faiths and Protestant sects. The New World was an opportunity to not allow for a state-run establishment of faith, while still recognizing the importance of faith communities in the geographic areas in which these new colonists settled. The Blaine Amendments’ assault on faith depart far from this premise and one can argue helped set the foundation for further challenges to faith in the public sphere that would occur near the middle of the twentieth century, such as the prayer in school debate.

Equal Protection

An assessment under the Equal Protection Clause should also be considered. The Equal Protection Clause of the 14^th Amendment provides that “a state shall not deny to any person within its jurisdiction the equal protection of the laws.”  The legislature had passed the law enabling this program for private schools and without barring religious private schools from participating. The Montana state agency responsible for collecting taxes then declared that religious private schools could not be included under the program because of indirect funding of religious schools.[4] The case reached the Montana Supreme Court and the court held specifically that the program could not include religious institutions, thus deeming it a violation of Montana law. It also concluded that the religious aspect of the program was not severable from the entire program, thus the entire program was invalidated.

While the Montana Supreme Court “remedied” the contradictory nature of the tax agency’s ruling on the program with its invalidation of the entire program, it does not mean that this issue should escape Equal Protection scrutiny. On its face, the actions of the agency to prohibit religious schools from benefiting from the tax credit program for private schools draws itself into conflict with the Equal Protection Clause. This case provides a unique opportunity for the Court to delve into a thorough analysis of the relationship between the two major areas of education and religion.

While education is not recognized as a fundamental right under the Constitution, the program established a means for educational opportunities for families choosing to enroll their children in private schools. The legislature did not prohibit it from applying to private religious schools. When it was decided that those individuals sought to take advantage of the already passed law, but apply it to a private religious school, the tax agency acted to deprive them of that choice. The agency’s decision by its very nature denied the individuals equal protection of the pre-existing law just because the private educational institution was religious based. The initial law passed should be found Constitutional. On simply Equal Protection grounds, the government had a rational basis for providing further educational opportunities for its students. Religious-based schools can be classified as private schools and the law encompassed private schools in Montana.

Free Exercise

If, however, one still accepts the Montana court’s decision that no Equal Protection violation was present by eliminating the private religious schools’ scholarship entitlement because Blaine takes priority it still does not remedy the problem that the Blaine Amendment itself poses. With this matter invoking a religious component, not just an educational one, there is an argument to be made that Blaine raises potential Free Exercise Clause violations here and therefore heightens the scope of this analysis. The Supreme Court has a checkered history of how to assess Free Exercise Clause violations.

In sum, for the purposes of this matter, the Supreme Court should use the Strict Scrutiny test that it has used in the past. This test provides that the state must have a compelling government interest to invalidate. As applied to this matter, it would be a compelling interest to refuse to accommodate the scholarship program as applied to religious schools. The basis of the Blaine Amendment to disallow direct and indirect funding to religious institutions infringes upon the Free Exercise Clause. One must question and press the state on how cutting off religious education funding is compelling, especially when the roots of this law were enacted under a discriminatory basis.

As discussed earlier, perhaps it centers around establishment concerns and the fear of state mandating a specific religious belief or practice. This, however, has its limits. Today, we live in a heterogeneous society with respect to the many faith traditions that are practiced in the United States. Montana may have more Catholic private schools that exist, but that does not mean that other faith beliefs and traditions are unwelcome to establish schools there. In addition, the state would likely have difficulty establishing that despite the numerous Catholic schools, that the bishop is the head of the state government or other religious faiths are disallowed to practice.

Furthermore, the concept of choice must be explored – does the state have a compelling interest to deprive or significantly burden their residents of educational decisions when it comes to religious schooling?  An example of how this could apply is if a religious school in the state was found to be promoting societal unrest and violence in the community. The public interest is therefore directly threatened by such an institution; therefore, the state may have a compelling even if its temporary, interest to prohibit support to these religious institutions. That is not present here, a law was duly passed allowing for the tax credit scholarship program to be permitted for private schooling, there so no compelling interest to deprive these institutions of indirect or direct funding even if they are religious in nature.

Conclusion

Overall, on several bases the Blaine Amendment should be found unconstitutional. Hopefully, the Supreme Court will use this opportunity to clarify the state relationship with religious education and challenge the Blaine Amendment legal framework that was wrongly enacted over 120 years ago and is in direct conflict with the Constitution.

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[1] https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/

[2] https://www.nationalreview.com/2020/01/religious-liberty-supreme-court-considers-challenge-to-blaine-amendment-espinoza-v-montana-department-of-revenue/

[3] In Trinity Lutheran, the Supreme Court assessed if a private Missouri faith-based school was entitled to receive state funding through grants to provide safety playground tire on its playground.  The Court ultimately found in a 7-2 vote that the failure to provide state funding to the faith-based school like the non-religious private schools violated the Free Exercise Clause.

[4] https://www.nationalreview.com/bench-memos/the-long-history-of-blaine-amendment-bigotry/