Explainer: Supreme Court strikes down discrimination against families in religious schools

What you need to know about the Espinoza v. Montana victory

June 30, 2020

What just happened? 

In a 5-4 decision, the Supreme Court held that Montana could not cut families off from a scholarship program available to all because they wanted to send their children to religious schools. This ruling strengthened the bedrock principle that states cannot discriminate against their citizens because of their faith. This case also has significant implications for the future of religious liberty. 

Chief Justice Roberts wrote the majority opinion joined by Justices Alito, Kavanaugh, Thomas, and Gorsuch. Justices Thomas, Alito, and Gorsuch wrote concurring opinions. Justices Breyer, Sotomayor, and Ginsberg, joined by Kagan, wrote dissenting opinions. Justice Kagan also joined portions of Justice Breyer’s opinion.

What is this case about? 

Espinoza v. Montana Department of Revenue involved a scholarship program in Montana that provided businesses the opportunity to pay into an exchange for tax credits. The funds were then distributed to low-income families as modest scholarships (no more than $150) to help pay tuition at private K–12 schools. Though the program was designed to provide general support to students attending all types of private schools, the Montana Department of Revenue refused to allow the scholarship money to be used at religious schools. The department cited a Montana state constitutional amendment, commonly referred to as Montana’s Blaine Amendment, that prohibits the government from directly or indirectly funding churches and religious schools.

A group of low-income mothers who sought to use the scholarship money to help send their children to religious schools sued the Department of Revenue claiming this was a violation of their First Amendment Free Exercise rights. The Montana district court agreed with the mothers, but the Montana Supreme Court struck down the entire program to avoid the conflict between the program and the state’s Blaine Amendment. 

This case primarily addresses whether “a state law that allows for funding for education generally while prohibiting funding for religious schools violate the Religion Clauses or the Equal Protection Clause of the federal Constitution?”

What are Blaine Amendments? 

The Blaine Amendments are state-level constitutional provisions that prohibit state legislatures and other government entities from appropriating funds to religious sects or institutions, including churches and schools. Many states have Blaine Amendments as a part of their state constitutions.

The amendments are named for James Blaine, a politician from Maine, who first introduced the measure as a federal constitutional amendment in 1875 as a way to prevent Catholic schools from participating in government sponsored programs. The measure fell short in the Senate and was kept out of the U.S. Constitution. However, advocates for the Blaine Amendments focused their efforts at the state level and eventually passed these provisions into 37 state constitutions. This ERLC explainer details how these 19th-century amendments continue to affect religious liberty today. 

Blaine Amendments undermine the religious freedom principles of government neutrality and individual choice guaranteed by the First Amendment. Government neutrality requires the government treat religious organizations no less favorably than secular organizations. Barring religious schools from participating in a general program simply because they are a religious organization is treating them less favorably than their secular counterparts. 

Addressing the Blaine Amendment in his majority opinion today, Chief Justice Roberts writes, “[It] 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.’”

How did the ERLC engage this case? 

As part of a large multifaith coalition of organizations, the ERLC filed an amicus brief (a friend-of-the-court brief) in this case arguing that denying the benefits to students attending religious schools violates the Free Exercise clause of the First Amendment. The brief also argued that preventing students whose religious beliefs compel them to attend a religious school from having access to scholarship money undermines their individual choice and inhibits the free exercise of their religion.

The Free Exercise clause covers not only identity, but also the right to live out that identity, which includes giving and receiving educational instruction from religious institutions. Justice Gorsuch echoed this argument in his concurring opinion where he wrote, “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.” 

The brief was authored by Thomas Berg, Douglas Laycock, and Kim Colby and, in addition to the ERLC, was joined by Christian Legal Society, United States Conference of Catholic Bishops, the Union of Orthodox Synagogues in North America, National Association of Evangelicals, and several others.

What is the significance of this case? 

This case comes as a follow-up to the 2017 religious liberty victory in Trinity Lutheran Church of Columbia v. Comer, where the Court ruled that the state of Missouri violated the Free Exercise Clause when it excluded a church preschool from a general program to purchase recycled tires and resurface its playground simply because it was a religious institution. To learn more about Trinity Lutheran and the issues at hand, see this explainer of the case’s legacy from Travis Wussow, ERLC’s vice president of public policy and general counsel, and listen to this episode of our Capitol Conversations podcast.  

The Court took a similar approach today as they did in Trinity Lutheran, ruling, in Chief Justice Roberts words, that, “The Free Exercise Clause protects against even ‘indirect coercion,’ and a State ‘punishe[s] the free exercise of religion’ by disqualifying the religious from government aid as Montana did here.”

Should a state choose to create generally available scholarship programs, they may not bar families from using the money at religious schools. According to Chief Justice Roberts, “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.”

What does this mean moving forward?

While this morning’s ruling did not formally strike down Blaine Amendments, not much is left after Espinoza. The Court affirmed that states may not exclude religious schools and families from scholarship programs. Chief Justice Roberts speaking of these schools and families writes, “They are ‘member[s] of the community too,’ and their exclusion from the scholarship program here is ‘odious to our Constitution’ and ‘cannot stand.’”

This case provides strong precedent to prevent states from discriminating against religious schools and students. We will continue to defend religious liberty at every level of government and await the day when Blaine Amendments are expunged from state constitutions once and for all. 

Speaking on today’s decision, Russell Moore commended the Court saying, “this ruling is consistent with long-held American principles, reaffirmed in recent years in cases such as Trinity Lutheran.”

Moore continues, “These scholarships were not a funding of religion, nor an entanglement of the state with the church. The issue here is whether a state-established scholarship program for private schools could discriminate against parents who chose to send their children to private schools that happen to be religious. Blaine Amendments have not advanced the cause of keeping distinction between the church and the state, but instead have resulted in often arbitrary and incoherent policies that are needlessly discriminatory. As a Baptist committed to a free church in a free state, and to the separation of church and state, I believe this ruling maintains those right freedoms and boundaries.”

Ultimately, today’s decision in Espinoza v. Montana Department of Revenue affirms what we know to be true: families and students should not lose access to the public square because of their religious beliefs.

ERLC interns Julia Stamper, Sloan Collier, and Seth Billingsley contributed to this article.

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24