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Explainer: Supreme Court considers whether states can ban public funding for religious schools

January 28, 2020

What just happened?

The U.S. Supreme Court recently heard oral arguments in a case that could have significant ramifications for religious liberty.  

At issue in h is the question of whether it violates the religion clauses or the equal protection clause of the U.S. Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.

Although Montana’s program has been discontinued, 18 other states still have similar tax-credit scholarship programs. The decision by the Court could also have a broad-based effect on similar funding of religious schools.

What is the case about?

The Montana legislature created a scholarship program in 2015 that provided a dollar-for-dollar tax credit of up to $150 for individuals and businesses who donate to private scholarship organizations. The money donated to the scholarship organizations was used to provide scholarships for children to attend private schools, many of which were religious-based. 

Because the state constitution includes a ban on aid for churches and religious schools (such bans are often called Blaine Amendment; see below), the Montana Department of Revenue issued a rule that prohibited parents from using the scholarships at religious schools. Two mothers, whose children received the scholarship and attended private Christian schools, filed a lawsuit claiming it was a violation of the U.S. Constitution. 

A state trial court agreed with the parents, but the Montana Supreme Court reversed the decision. The women appealed to the U.S. Supreme Court, who agreed last June to hear the case.  

Didn’t the Trinity Lutheran case already resolve this issue?

In 2017, the Supreme Court issued a ruling in Trinity Lutheran Church of Columbia v. Comer, a case involving a religious preschool that was rejected from a state program that provides reimbursement grants to purchase rubberized surface material (i.e., tire scraps) for children’s playgrounds. The preschool was originally denied the grant for its playground solely because the playground belongs to a religious organization. The Court ruled the state of Missouri violated the Free Exercise Clause of the U.S. Constitution when it excluded a church from a general program to purchase recycled tires and resurface its playground because it was a religious institution.

While the ruling acknowledged Missouri’s policy “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,” it didn’t address Blaine Amendments. The Court’s refusal to address the issue at the time means such amendments remain in numerous state constitutions. 

What are Blaine Amendments?

Blaine Amendment is the umbrella term for any provision that specifically prohibits state legislatures (and often other governmental entities) from appropriating funds to religious sects or institutions, including religious schools.

In 1875, the Maine politician James Blaine introduced a constitutional amendment to prohibit the use of state funds at “sectarian” schools (at the time, sectarian was a code word for Catholic parochial schools) in order to inhibit immigration. Since the public schools during that era instilled a Protestant Christian view upon its students, promoting public education at the expense of private schooling was viewed as a way to stem the tide of Catholic influence.

While the federal amendment passed by a large majority in the House (180-7), it failed by a tiny margin in the Senate (4 votes). Supporters of the amendment, however, pressed the issue at the state level, often making it a prerequisite for statehood. The anti-religion measure eventually found its way into 37 state constitutions. 

What is the significance of the case?

The religious liberty law firm Becket, which filed an amicus curiae brief in the case, highlights three reasons the decision may be significant for religious freedom: 

(1) It will affect the education of American children. As Becket notes, religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools; 

(2) The ruling could dismantle anti-religion state laws. As long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, says Becket, people of all faiths can face discrimination, simply because they choose to attend a religious school; 

(3) The ruling could reinforce the precedent set by Trinity Lutheran. A ruling in favor of the parents represented in the Espinoza case could expand the more narrow ruling in Trinity Luthern to apply to a broader range of issues involving state funding and support of religious education.