The Supreme Court on Thursday ruled against a Montana law preventing government-funded scholarships from being used for tuition at private religious schools, a win for religious liberty advocates.
The case, Espinoza v. Montana Department of Revenue, concerned whether the Montana state government violated the religion clauses or the equal protection clause of the Constitution by prohibiting funding for religious schools while allowing it for education in general. It was decided in a 5-4 vote, with the conservative wing and the liberal wing of the court voting as separate blocs.
“The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution,” Chief Justice John Roberts wrote in the court’s majority opinion.
The case, which arose after three mothers were barred by state law from using their children’s scholarship funds won from the state for tuition at a private Christian school, was a referendum on the so-called Blaine amendments. These state-level constitutional provisions, adopted in the 1870s, were motivated by the prevailing anti-Catholic sentiment of the time to keep government money out of parochial schools.
Roberts, who is himself Catholic, referenced the Blaine amendments in his majority opinion, casting aspersions on their “checkered tradition” after a failed attempt in President Ulysses S. Grant’s administration to make them federal law prompted many states to write their own versions.
“The Blaine Amendment 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,'” he said, referencing Justice Clarence Thomas’s plurality opinion in Mitchell v. Helms, a 1999 case over whether or not government loans could be used in Louisiana religious schools.
Roberts concluded that states are not required to subsidize private education, but once one does so, “it cannot disqualify some private schools solely because they are religious.”
In a concurring opinion, Thomas, joined by Justice Neil Gorsuch, wrote that the questions presented in the case (whether or not it is permissible for state governments to make laws that treat religion favorably) are a result of, in his opinion, an “erroneous” view of the establishment clause adopted by the Supreme Court. The view, Thomas wrote, is that “the government must treat all religions equally and treat religion equally to nonreligion.”
“Under a proper understanding of the Establishment Clause, robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level,” he said. “The Court’s distorted view of the Establishment Clause, however, removes the entire subject of religion from the realm of permissible governmental activity, instead mandating strict separation.”
Justice Stephen Breyer, in a dissent joined by Justice Elena Kagan, pushed back against that interpretation, writing that the establishment clause prohibits government support for religion and instead is only intended to “avoid religiously based discord while securing liberty for those of all faiths.”
In a statement, the U.S. Council of Catholic bishops applauded the court for clarifying that the Constitution “does not permit states to discriminate against religion.” Nebraska Sen. Ben Sasse, who has in the past has defended judicial nominees belonging to the Catholic organization the Knights of Columbus from criticism based on their faith, also praised the decision for rolling back a statute with “a dark history grounded in rank anti-Catholic bigotry.”
Attorney General William Barr, who frequently cites religious liberty as one of his primary goals, also expressed support for the decision, saying in a statement that it aligns with the opinion of the Trump administration.
“Religious people are ‘members of the community too,’ and their exclusion from public programs because of their religion is ‘odious to our Constitution’ and ‘cannot stand,'” Barr said, quoting from Roberts’s opinion.
