Photo Credit: Jeff Kubina (CC-By-SA 2.0)

The Supreme Court on Tuesday ruled that Montana’s exclusion of religious schools in their school choice program was unconstitutional. 

The Montana Constitution contains Blaine Amendment language that prohibits government aid to any school that is “controlled in whole or in part by any church, sect, or denomination.” 

The Blaine Amendment was a failed constitutional amendment proposed by then Speaker of the House John G. Blaine in 1875 that would block public funds for Catholic schools. While Blaine was unable to see the U.S. Constitution amended, thirty-eight states adopted similar language into their state constitutions.

The Montana Legislature created a program that would provide tax credits to those who donated to organizations that provided scholarships for students to attend private school. The Montana Department of Revenue implemented “Rule 1” to comply with the Montana Constitution that barred scholarships from being used at religious schools.

The Montana Supreme Court invalidated the program arguing the scholarship program did not have a mechanism to prevent aid from flowing to religious schools.

In a 5 to 4 decision in Espinoza v. Montana Department of Revenue, the Supreme Court found that Montana discriminated against families who wanted to use scholarships at religious schools in violation of the First Amendment’s free exercise clause. 

Chief Justice John Roberts wrote the majority opinion, and he was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Thomas wrote a concurring opinion and was joined by Gorsuch. Gorsuch and Alito also wrote concurring opinions. Justices Ruth Bader Ginsberg, Elana Kagan, Sonia Sotomayor, and Stephen Breyer dissented. 

Roberts writing his opinion, noted that the Supreme Court had ruled that government funds benefiting religious organizations were not a violation of the Establishment Clause. He wrote, “We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”

“Any Establishment Clause objection to the scholarship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools,” he added. 

The defendants argued that Trinity Lutheran Church v. Comer did not apply to this case as the funds were not used for a non-sectarian playground, but religious education.

Roberts noted that the Montana Constitution discriminates based on religious status and not on the “religious use” of public funds, “The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations’ owned or controlled by a church, sect, or other religious entity.'” 

He also stated that the Montana Supreme Court’s decision “hinged solely on religious status.” 

“Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses,” Roberts wrote.

He directly cited the Blaine Amendment as part of America’s “checkered past.” 

“(M)any of the no-aid provisions belong to a more checkered tradition shared with the Blaine Amendment of the 1870s. That proposal—which Congress nearly passed—would have added to the Federal Constitution a provision similar to the state no-aid provisions, prohibiting States from aiding ‘sectarian’ schools… ‘[I]t was an open secret that ‘sectarian’ was code for ‘Catholic.’…The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general;’ many of its state counterparts have a similarly’ shameful pedigree,'” Roberts wrote. 

“The no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause,” he added.

Roberts argued states are not compelled to fund private schools, but they can not discriminate if they do, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

While this opinion does damage to Blaine Amendment language, religious liberty concerns continue.

In a concurring opinion, Thomas joined by Gorsuch notes that the Supreme Court’s interpretation of the Establishment Clause “continues to hamper free exercise rights.” 

“Under the modern, but erroneous, view of the Establishment Clause, the government must treat all religions equally and treat religion equally to nonreligion,” he argued. “This understanding of the Establishment Clause is unmoored from the original meaning of the First Amendment.”

“(T)he modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood, the Establishment Clause does not prohibit States from favoring religion. They can legislate as they wish, subject only to the limitations in the State and Federal Constitutions,” Thomas argued. 

He noted that the Court’s “expansive” understanding of the Establishment Clause had caused a “cramped” interpretation of the Free Exercise Clause.

“Under this Court’s current approach, state and local governments may rely on the Establishment Clause to justify policies that others wish to challenge as violations of the Free Exercise Clause. Once the government demonstrates that its policy is required for compliance with the Constitution, any claim that the policy infringes on free exercise can not survive,” Thomas wrote. 

He noted the Supreme Court’s 2004 ruling in Locke v. Davey that allowed the state of Washington to continue to discriminate against students pursuing training as clergy. The state did not discriminate based on status as it allowed scholarships for students attending religious schools. Still, the Supreme Court allowed discrimination based on what a student planned to do. 

The Supreme Court at the time allowed it to continue because it furthered Washington’s “antiestablishment interests.” 

Thomas argued those interests were not at stake, “The State neither coerced students to study devotional theology nor conscripted taxpayers into supporting any form of orthodoxy.”

Locke incorrectly interpreted the Establishment Clause and should not impact free exercise challenges,” he wrote.

Thomas also challenged the test the Supreme Court developed in their 1971 decision in Lemon v. Kurtzman used to prohibit government practices viewed as endorsing religion.

“This, too, presupposes that the Establishment Clause prohibits the government from favoring religion or taking steps to promote it… (T)he Establishment Clause does nothing of the sort. The concern with avoiding endorsement has nevertheless been used to prohibit voluntary practices that potentially implicate free exercise rights, with courts and governments going so far as to make the ‘remarkable’ suggestion ‘that even while off duty, a teacher or coach can- not engage in any outward manifestation of religious faith,'” he wrote.

“The Court’s current understanding of the Establishment Clause actually thwarts, rather than promotes, equal treatment of religion. Under a proper understanding of the Establishment Clause, robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level. The Court’s distorted view of the Establishment Clause, however, removes the entire subject of religion from the realm of permissible governmental activity, instead mandating strict separation,” he wrote.

Alito, in his concurring opinion, focused on the Blaine Amendment history and anti-Catholic bigotry. He noted that when Montana re-adopted the language in 1972, it still had the same impact as it had when it was first introduced. He said that even if Montana did more to address the no-aid provisions past, it still did nothing to resolve its inherent bias. 

“Today’s public schools are quite different from those envisioned by Horace Mann, but many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. The tax credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice,” he wrote.

Gorsuch, in his concurring opinion, notes that the Free Exercise Clause of the First Amendment does not just protect against discrimination based on religious status, but religious activity as well. 

“Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion. Nor are the line-drawing challenges here unique; they have arisen before and will again, ” he wrote. 

“Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly,” Gorsuch wrote. “So whether the Mon- tana Constitution is better described as discriminating against religious status or use makes no difference: It is a violation of the right to free exercise either way, unless the State can show its law serves some compelling and narrowly tailored governmental interest, conditions absent here for reasons the Court thoroughly explains.”

“Often, governments lack effective ways to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all,” he added.

Read the entire decision below:

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