The U.S. Supreme Court’s decision in Espinoza v. Montana Department of Revenue resolves an issue that has plagued our First Amendment jurisprudence for over 100 years: so-called “Blaine Amendments” that discriminate against religious schools. Delivering a 5-4 decision for the court, Chief Justice John Roberts’ opinion affirms a straightforward rule: Religious entities cannot be disqualified from public benefits just because they are religious.
The lawsuit began in 2015 after Montana legislators enacted a program that provided “a dollar-for-dollar tax credit up to $150” to taxpayers who donate to student scholarship organizations, nonprofits that allocate at least 90 percent of their revenue toward private-school scholarships at multiple schools. The Montana Department of Revenue was tasked with implementing the program but declared it invalid because the Blaine Amendment, Article X Section 6 of the Montana Constitution, forbid government entities from granting financial aid to religious organizations.
The petitioners, parents who desired to use the program toward their child’s education at a religious school, challenged the Blaine Amendment both facially and as applied. After several years of litigation in lower state courts, the Montana Supreme Court threw out the whole program for all private schools, religious and non-religious. The U.S. Supreme Court reversed that decision.
The defendants claimed that Montana’s Blaine Amendment was a valid decision not to fund religious activity. But this was not so. The Montana Legislature decided to make the scholarship available to students attending all Montana private schools. The Blaine Amendment discriminated based on religion by singling out religious schools and students for mistreatment. As Chief Justice Roberts explained, no state can be compelled to fund religious private schools. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
Much of the Espinoza opinion built on the Supreme Court’s 2017 ruling in Trinity Lutheran Church of Columbia v. Comer, argued by Alliance Defending Freedom. In that case, a preschool and daycare operated by a church was denied access to a public benefit program reimbursing schools that purchased recycled tire material for building safer playground surfaces. Trinity Lutheran Church was denied this benefit—while lesser-qualified non-religious schools were granted that benefit—strictly because of its religious status. As the Supreme Court ruled in Trinity Lutheran, “this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.”
The defendants in Espinoza argued that Trinity Lutheran did not apply because it involved a religious entity using public monies for a non-religious purpose (playgrounds), while private religious schools could do otherwise. But the court saw through this argument as well.
Montana’s Blaine Amendment denies parents equal access not because of how the religious schools use the money, but because of who they are. The amendment discriminated based on a protected status. As Chief Justice Roberts affirmed, “Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.”
Additionally, Montana’s Blaine Amendment excluded the religious schools from benefiting from the program in any manner. It would have forbidden them from using the parent-allocated money to subsidize math textbooks identical to the books used by Montana public schools. There is simply no sound Establishment Clause argument for such discrimination.
Finally, the state tried to claim that the Blaine Amendment actually helps religious schools by preventing them from being entangled with a government program, protecting them from being controlled by the state. But this argument does not hold water either.
First, as Justice Samuel AlitoSamuel AlitoSteve Bannon's Supreme Court? Supreme Court seems wary of Boston's refusal to allow flying of Christian flag Supreme Court agrees to hear case on HS coach's suspension over on-field prayers MORE’s concurrence explains at length, there is ample evidence that Blaine amendments, named after Maine Sen. James G. Blaine, were inspired by hostility toward religion—and bigotry toward Catholics in particular. When Montana chose to keep its Blaine Amendment in the 1970s, it allowed this unfair discrimination to live on.
Second, a religious school could decline to participate in the program for any reason. But with the Blaine Amendment, that choice is not available. As Chief Justice Roberts put it, “we doubt that the school’s liberty is enhanced by eliminating any option to participate in the first place.”
Laws that discriminate against religion are always unconstitutional. The Supreme Court has affirmed this, and this latest decision will benefit thousands of children—mostly from lower income families—across America for decades to come.
John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom, which filed an amicus brief with the U.S. Supreme Court in Espinoza v. Montana Department of Revenue and litigated Trinity Lutheran Church of Columbia v. Comer. Bursch served as Michigan’s solicitor general from 2011-2013.