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.