January 24, 2020
Photo courtesy of the Institute for Justice
On Wednesday, January 22, the Supreme Court held oral arguments in a Montana case involving education and religious discrimination – a situation whose roots go back to the late 19th century.
In a time of suspicion and distrust of immigrants – many of whom were Catholic – the majority of states enacted constitutional amendments to prevent Catholic schools from receiving any taxpayer funding. These laws had the effect, at the time, of ensuring that the de facto Protestant character of most public schools would not have to face competition with parochial schools.
Using the law to target or restrict disfavored religious groups has played out time and again in American history, so these laws, known as Blaine Amendments, were simply one of a long string of laws seeking to discriminate against a religious group.
These amendments provided a hurdle when some states later wanted to recognize the contributions of private, religiously motivated schools, to the education of children in the states – such as by providing busing services to these schools. That the states would favor allowing low-income families, in particular, to have access to this kind of education is not surprising, given research that suggests religious schools are excellent at promoting high academic achievement in their students.
More recently, disputes have centered around efforts to allow educational innovation by allowing parents to use the money the state would allot for education spending to use some of that money in private schools, including those with religious missions.
The Blaine Amendments have been invoked by opponents of these education funding initiatives. The U.S. Supreme Court has held that the U.S. Constitution’s Establishment Clause does not prevent parent-directed education funding just because it may be used in religious schools and the Free Exercise Clause does not require the state to fund religious education.
States, however, have interpreted Blaine Amendments expansively, and this has created new conflicts. In 2017, the U.S. Supreme Court considered the validity of Missouri’s decision to exclude a religious preschool from a public grant program to upgrade playground equipment simply because it was religious. The court ruled that the state could not limit the students who were eligible to benefit from the safety because they attended a religious school. Chief Justice John Roberts wrote: “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
The court did not specifically decide the constitutional status of Blaine Amendments, but the Montana case mentioned above might cause the Supreme Court to do so.
In this case, Montana adopted a scholarship program designed to help low-income students. The program did not inquire into whether the money would be used in religious or secular schools, but the Montana Department of Revenue said the scholarships could not be used for religious schools because of the state’s version of a Blaine Amendment, Article X, section 6. The Montana Supreme Court invalidated the entire program for the same reason. Families affected by these decisions are asking the Supreme Court to hold that these decisions single out religious organizations and people of faith for disfavored treatment just like the Missouri grant program did.
It is notoriously difficult to determine how the court will rule based on questions from the justices to the attorneys earlier this week in this formal setting. Questions directed to the attorney for the Montana parents focused on whether they were really beneficiaries of the program who would be authorized to challenge the decision to end the program. The federal government supported the parents and argued that the Montana Supreme Court misinterpreted the law by holding the Blaine amendment prevented the state from allowing parents to choose how to use the scholarship money. So, they argued, the program should be reinstated.
In questioning the attorney for Montana, Justice Samuel Alito summarized the argument of the parents: “They don’t have to fund private education at all, but if they choose to provide scholarships that are available to students who attend private schools, they can’t discriminate against parents who want to send their children to schools that are affiliated in some way with a church.” He suggested that this seems very much like the Missouri case decided by the court in 2017. Justice Brett Kavanaugh asked Montana’s attorney how this situation would be any different from a decision of the state to extend aid to all schools except Catholic or Jewish ones.
The court will issue its decision in coming months and may finally lay to rest this longstanding practice of religious discrimination. That would be a welcome development for religious freedom.
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