On Tuesday, in a 5-4 decision, the Supreme Court released a ruling ensuring students in Montana can use their tax credit for faith-based schools. Although this was a niche case that garnered little media attention, the ruling actually has more broad implications than many may realize at first. There are all sorts of ways religious groups partner with the government, and this ruling protects their liberties.
Espinoza v. Montana Department of Revenue asked the Supreme Court to determine whether the Montana Department of Revenue discriminated against religion in violation of the free exercise clause when it prohibited Kendra Espinoza, a single mother of two daughters, from using the state’s neutral Tax Credit Scholarship Program to send her daughters to a religious school. The Montana Supreme Court, which earlier had ruled in favor of the Department of Revenue, said it was complying with the state constitution and the archaic Blaine Amendment, a 19th-century, anti-Catholic provision that banned tax credits from going to religious schools. Blaine Amendments are adopted in many state constitutions and are a scourge for many religious liberty advocates since they are rooted in bigotry and so constrictive.
The Supreme Court found in favor of Espinoza. In the majority opinion, which Chief Justice John Roberts authored, the Supreme Court excoriated the Blaine Amendments, saying they were “born of bigotry” and that the “no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause.” It also said that excluding religious schools from the scholarship program here is “odious to our Constitution” and “cannot stand.”
In Justice Clarence Thomas’s concurrence, he expounded further on the establishment clause, saying it is often misinterpreted as an equality clause. “Thus, the modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect.” Thomas said it’s far more accurate to understand that “at the founding, the Clause served only to ‘[protect] States, and by extension their citizens, from the imposition of an established religion by the Federal Government.’”
Of course, religious liberty advocates were happy to see the results of this case. In a statement, Alliance Defending Freedom Senior Counsel and Vice President of Appellate Advocacy John Bursch said, “The Supreme Court was right to rule that states can’t oust parents and children from neutral benefit programs simply because they choose a religious private school. This is consistent with the court’s 2017 decision in the ADF case Trinity Lutheran Church of Columbia v. Comer, which unequivocally reaffirmed that states can’t impose ‘special disabilities on the basis of religious views or religious status.'”
In Justice Samuel Alito’s concurring opinion, he referred often to Becket’s amicus brief, which explains just how bigoted Blaine Amendments really are. In a statement, Diana Verm, senior counsel at Becket, said, “It was high time for the Blaine Amendments to bite the dust. Our Constitution requires equal treatment for religious people and institutions. Relying on century-old state laws designed to target Catholics to exclude all people of faith was legally, constitutionally, and morally wrong. The Court was right to kick the Blaine Amendments to the curb.”
For children in Montana who want to use their tax credit to attend religious schools, this is a great outcome. But it’s more than that. This ruling also implies governments can no longer use Blaine Amendments as an excuse to discriminate against groups that do good work but have a religious foundation. Beyond schools, this could include groups that shelter the homeless or harbor battered women, prison ministries that rehabilitate and inform, and soup kitchens and hospitals that serve the poor under a religious banner.
Blaine Amendments, with their bigoted roots and limits on free exercise, have been used to quell government partnerships with religious groups in the past. Religious discrimination and anti-Catholic bigotry should not persist, especially not through the state under the auspices of protection.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
