Supporters of school choice, take notice. The Supreme Court just heard oral arguments in a case that could limit your ability to pick the school that's right for your children.
In Espinoza v. Montana Department of Revenue, a group of parents is challenging the state's decision to exclude religious schools from a scholarship program.
When the Montana legislature created the program in 2015, it allowed parents to use scholarship funds at any qualified private school. To encourage donations, taxpayers would receive a modest tax credit of $150 per year for donations to the scholarship-granting organization.
But then, the state enacted a rule excluding religious schools, citing the state constitution's prohibition on public funds aiding such institutions. Parents who relied on the scholarships to send their kids to religious schools sued, and the Montana Supreme Court struck down the scholarship program in its entirety.
At the U.S. Supreme Court, the shadow of Sen. James Blaine loomed large. He was the architect of a failed constitutional amendment in the late 1800s that sought to prohibit public funds from aiding "sectarian" schools. As Justice Clarence Thomas wrote in Mitchell v. Helms (2000), "It was an open secret that 'sectarian' was code for 'Catholic.'"
Though the federal amendment failed, many states adopted their own Blaine Amendments. These ignoble amendments often thwart modern-day school-choice efforts, as more and more states move toward systems that enable families to direct their children's education funding.
The lawyer representing Montana argued that there was no religious discrimination at play in this case. The state court simply tried to balance the competing interests of the state's objection to funding religious education and the fact that disallowing the use of funds at religious schools was essentially "a penalty on religion." To balance these interests, the court decided to eliminate the scholarship program entirely.
But Justice Brett Kavanaugh took issue with the claim that there was no discrimination, saying the Montana amendment was motivated by and rooted in "grotesque religious bigotry against Catholics." Justice Samuel Alito pointed out that states enacted Blaine Amendments when a wave of Irish Catholic immigrants poured into the country during the Irish potato famine. "Do you really want to argue ... that had nothing to do with discrimination based on religion?" Alito asked incredulously.
Justice Sonia Sotomayor lauded the "long history" going back to our nation's founding of "the position that the state should not give money to religious institutions." But as a lawyer from the Trump administration explained, the Founding Fathers were concerned about compelled financial support of religious institutions and not denying generally available benefits to institutions because they are religious.
Indeed, the Supreme Court heard such a case in 2017. In Trinity Lutheran Church v. Comer, the court ruled by a vote of 7-2 that Missouri discriminated against a church-run daycare that applied for a public grant to resurface its playground. The state tried to hide behind its Blaine Amendment, but the court sidestepped the issue and did not address the broader constitutional problem with these provisions.
Eliminating Blaine Amendments will not open the floodgates to allow public funds to flow to religious schools. Instead, if states choose to create school-voucher programs, tax-credit scholarships, and other school-choice initiatives, parents will be able to direct their children's education funds, regardless of whether it's at secular or religious schools.
It's time for the court to make clear, as Thomas so eloquently stated nearly 20 years ago, that Blaine amendments, "born of bigotry, should be buried now."
This piece originally appeared in the Independent Record