By Mark Movsesian, Public Discourse, February 4, 2020,
The US Supreme Court seems likely to rule in a way school-choice advocates will welcome. The Court will likely overrule the Montana court and hold a ban on scholarships for students at religiously affiliated schools unconstitutional—an important ruling, to be sure. But a sweeping opinion seems unlikely. Rather, Espinoza is shaping up to be one of those closely divided, narrow decisions that have become familiar in the Court’s Religion Clause jurisprudence.
In late January, the US Supreme Court heard oral argument in Espinoza v. Montana Dept. of Revenue, a case examining the constitutionality of a Montana school-choice program that allows parents to direct state-funded scholarships to religiously affiliated schools. The Montana Supreme Court ruled in 2018 that the program violated the state constitution’s “Blaine Amendment,” which prohibits the appropriation of public money for “sectarian” institutions, including private, religiously affiliated schools.
About forty state constitutions have such provisions, which take slightly different forms in different states. The Blaine amendments date from the nineteenth century, and they bear the name of the Republican representative, senator, and presidential candidate, James G. Blaine, who first proposed such an amendment to the federal constitution.
When the Court agreed to hear Espinoza, some observers thought the case might result in a broad ruling that state-level Blaine amendments violate the federal constitution. As a historical matter, the amendments were motivated, in large part, by anti-Catholicism—anti-religious hostility that could render the amendments unconstitutional, under some Supreme Court precedent, as a violation of state religious neutrality. A broad opinion striking down the Blaine amendments would be a major boon for school choice programs and educational diversity across the country. Because the large majority of private schools in America have religious affiliations, the amendments currently create obstacles for state school-choice programs.
Based on the questions at oral argument, the Court seems likely to rule in a way school choice advocates will welcome. The Court will likely overrule the Montana court and hold the ban on scholarships for students at religiously affiliated schools unconstitutional—an important ruling, to be sure. But a sweeping opinion seems unlikely. Rather, Espinoza is shaping up to be one of those closely divided, narrow decisions that have become familiar in the Court’s Religion Clause jurisprudence.
The Details of the Case
Espinoza involves a Montana school choice program that offered state-funded scholarships for students to attend private schools. Depending on the choice of the recipients, the schools could be either religiously affiliated or non-religiously affiliated. The program allowed Montana taxpayers a relatively modest tax credit, up to $150, for donations to participating scholarship organizations. The organizations, in turn, provided scholarships for use in private schools that the students’ parents or guardians would select. The petitioners in Espinoza received scholarships from one of the participating organizations, which they planned to use to help pay their children’s tuition at a private Christian school.
At this point, the Montana revenue authorities intervened. Citing the Montana Constitution’s Blaine amendment, which prohibits the direct or indirect appropriation of public funds to aid a school “controlled in whole or in part by any church, sect, or denomination,” the authorities ruled that participants in the scholarship program could not use scholarship money to pay tuition at religiously affiliated schools. When the petitioners sued to retain their scholarships, the Montana Supreme Court ruled against them. Montana’s Blaine amendment precluded any public funds for religiously affiliated schools, the court held, including funds made available by tax credits. Indeed, because the state could not ensure, as a practical matter, that public monies under the program would never make their way to religiously affiliated schools, the court invalidated the scholarship program in its entirety.
The petitioners sought review in the US Supreme Court, arguing that their exclusion from the scholarship program, simply because they planned to use the scholarships at a religiously affiliated school, violated their rights under the federal constitution. (The Montana court had dismissed this argument in two sentences, without even addressing the relevant case law, an entirely inadequate treatment of a serious legal issue.) Among other things, they argued that their exclusion from the program violated the US Constitution’s Free Exercise Clause.
Based on the oral argument, a majority of the justices seem likely to agree. The Justices showed little interest in a broad ruling on the constitutionality of Blaine Amendments. True, Justices Alito and Kavanaugh referred to the anti-Catholic roots of the Blaine Amendments, which could, under the Court’s decisions, render the Amendments unconstitutional as expressions of hostility to religion. But the Court will likely avoid that path. Disentangling the motives of long-ago lawmakers is a difficult task. Many who voted for Blaine amendments in the nineteenth century did so from religious bias, but others, presumably, did not. Figuring out which motives predominated would not be easy. Besides, the version of the amendment in Montana’s current constitution dates from 1972, when the state updated its nineteenth-century constitution. No one argues that anti-Catholicism dominated Montana politics at that late date.
The Court seems unlikely, then, to undertake a legal history project on the genesis of the Blaine amendments. Indeed, Justice Alito said from the bench that a broad ruling on the Blaine amendments would not be necessary. Instead, the Court seems likely to issue a narrower decision that invalidates the amendment only as applied in this case. The vote will likely be a close one. The Court’s decisions with respect to state financial aid for religiously affiliated schools point in different directions; based on the justices’ interventions at oral argument, there could be as many as four dissenting votes. In the end, though, the Court will likely overrule the Montana court and hold that the use of these scholarships at religiously affiliated schools is constitutional.
Free Exercise, Establishment, and Parental Choice
To see why, it is necessary to consider the interplay between the two Religion Clauses: the Establishment Clause and the Free Exercise Clause. As the Court has interpreted them, these two clauses are “frequently in tension” (to quote the Court itself), which is one reason why cases like Espinoza are so complicated. The Court has said that the Establishment Clause prohibits state action that has the primary effect of advancing religion. As a result, state financial aid for religiously affiliated institutions, including schools, traditionally has raised constitutional questions.
Nonetheless, over the course of recent decades, the Court has become more accepting of the idea that state financial aid may reach religiously affiliated schools. For example, the Court has ruled that the Establishment Clause does not prevent a state from providing financial assistance on a neutral basis to parents, some of whom then use the assistance to help pay tuition at religiously affiliated schools. In Zelman v. Simmons-Harris (2002), the Court held that a voucher program that gave parents the option to use state financial assistance at religiously affiliated schools did not violate the Establishment Clause, since the assistance reached the schools “wholly as a result of” the parents’ “own genuine and independent choice.” Such indirect aid for religiously affiliated schools, the Court held, is constitutionally permissible.
In fact, as the Court has interpreted it, the Free Exercise Clause may actually require that a state provide direct financial assistance to religiously affiliated schools in some circumstances. In Trinity Lutheran Church v. Comer (2017), the Court ruled that a state could not exclude a church preschool from a state grant program that provided funds to refurbish school playgrounds. Denying a recipient a generally available state grant simply because of the recipient’s religious “status,” the Court held, violates the Free Exercise Clause, since it would make the recipient choose between giving up its religious character and receiving otherwise available state aid.
In Trinity Lutheran Church, the state argued that it had excluded religiously affiliated institutions from the grant program, under the state’s version of the Blaine amendment, in an attempt to avoid the establishment problems that state funding for religiously affiliated schools would create. But the Court dismissed that argument. The state’s interest in avoiding establishment problems was not “compelling” in the circumstances, the Court said, given the free exercise principles at stake.
Applying these earlier decisions, Espinoza appears a straightforward case. Just as in Zelman, public monies here make their way to religiously affiliated schools “wholly as a result” of parents’ independent choice—so Establishment Clause problems are not present. Just as in Trinity Lutheran Church, the state here has denied access to public financial assistance solely because of the religious character of the beneficiaries—which violates the Free Exercise Clause. Montana’s interest in applying its Blaine amendment in these circumstances is not compelling, and its ban on the use of scholarship funds at religiously affiliated schools is unconstitutional.
The Progressive Objection
It is likely that five justices—Alito, Gorsuch, Kavanaugh, Thomas, and Chief Justice Roberts—will agree with this analysis. But it seems unlikely the Court’s four progressives will do so. Two of the justices, Ginsburg and Sotomayor, seem to believe that the petitioners lack standing to bring this case and that the Court should dismiss their claims without reaching the merits. But this seems a weak argument (Montana itself did not raise the issue), and it is unlikely that a majority of the justices will agree with it. On the merits, all four progressives sided with Montana. In fact, two progressive justices who joined the Court’s opinion in Trinity Lutheran Church, Kagan and Breyer, indicated at oral argument that they see this case as quite different.
In Trinity Lutheran Church, Kagan said, the state was providing funds for playground refurbishment, a use unrelated to the religious character of the recipient. Here, by contrast, state funds would go, without restriction, toward education at religiously affiliated schools. In that context, she said, the state’s establishment concerns are much stronger. A state could legitimately decide that it did not want public money to fund religious education, in a way it could not legitimately decide to ban public money for school playgrounds or other secular uses. A state could legitimately decide that tax money should not go towards catechism classes, after all. Justice Breyer agreed. A main purpose of the Establishment Clause, he noted, was to keep the state out of religious education.
There is definitely something to this point, but I think it is ultimately unpersuasive under the Court’s precedents. In a case called Locke v. Davey (2004), the Court held that a state did not violate the Free Exercise Clause when it refused to allow a ministry student to use public scholarship funds for a university course in “devotional theology.” In those circumstances, the Court ruled, the establishment-clause concerns were substantial: states had long resisted the use of public funds to support clergy.
Is Espinoza like Locke? The analogy seems forced. Training to be a minister in a university program differs from merely attending a religiously affiliated school—especially, as Justice Kavanaugh remarked, a K–12 school that “satisfies [the state’s] compulsory education laws.” In fact, the scholarship program in Locke allowed students to spend the money at religious schools; only the use of funds for clergy training was prohibited. Properly read, then, Locke doesn’t apply to the issue in Espinoza. But if one reads Locke broadly—as Kagan and Breyer appear inclined to do—as extending to religious education generally and not just clergy training, Espinoza becomes a more difficult case.
A narrow, 5–4 decision, limited to the facts of the case, would not be the sweeping victory for which school choice advocates might have hoped. But it would be an important victory, nonetheless.
The large majority of private schools in America have religious affiliations. By most accounts, these schools do very well by their students. They provide excellent educations and offer advantages that public schools often lack, including a focus on discipline and values that helps students while in school and after they graduate. Excluding them from public scholarship programs sets back the cause of school reform, and a victory in Espinoza would help rectify this situation. Allowing religiously affiliated schools to participate on an equal basis in public scholarship programs would benefit millions of schoolchildren across the United States.
This article first appeared HERE.