The separation of church and state is an often misunderstood and controversial concept. Hopefully, an upcoming Supreme Court case can help clear it up.
On Wednesday, the court will hear oral arguments in Espinoza v. Montana Department of Revenue, a much-anticipated case centered around school choice, government funding, and religious education. The justices will examine whether the state of Montana violated the First Amendment or the Constitution’s equal protection clause when it prohibited Kendra Espinoza, a single mother of two daughters, from using the state’s supposedly neutral scholarship program to send her daughters to a religious school.
In 2015, the Montana state legislature passed the Tax Credit Scholarship Program, which would have allowed residents a tax credit of $150 if they donated to organizations or scholarships which provided aid to private school students with tuition expenses. The Montana Department of Revenue limited the program to nonreligious private schools, and the Montana Supreme Court ruled in favor of this decision. The court claimed to be complying with the state constitution, particularly the Blaine Amendment, a 19th century, anti-Catholic provision that banned tax credits from going to religious schools.
Becket Senior Counsel Diana Verm, whose organization filed a brief in support of Espinoza, said on a recent press call that this case would have “big implications for religious liberty.”
Verm hopes the Supreme Court will finally address the “constitutionality of Blaine Amendments, which are archaic laws originally enacted during a time of extreme anti-Catholic prejudice in the 19th century,” she said. “Their sole purpose was to target Catholics by excluding their influence from the predominantly Protestant public schools.”
She continued to describe Blaine Amendments, which exist in roughly 40 states. They’re now used to “discriminate against any and all religion, especially in the context of education where they limit school choice for low income and minority children, children living in remote or rural areas, and children with special needs,” she said.
Verm remains optimistic the court will rule in favor of Espinoza and her family. It certainly should.
A tax credit used toward public, private, or religious schools is not a violation of the establishment clause of the First Amendment. Does funding education somehow establish a formal state religion? In fact, prohibiting the credit from being used toward religious schools appears to violate the equal protection clause as much as anything else, since the state is explicitly targeting and punishing certain schools based on their religion.
After all, the case only originated because Espinoza wanted to use the tax credit to send her children to a religious school, and the state got in the way.
“The way I try to raise my girls, of course I want them to be able to read the Bible and be taught how to pray, taught from that faith-based perspective. At the public school, there’s a lot of disrespect and not enough of those values that I wanted them to learn,” Espinoza told Reuters.
Whether the choice is a religious school, small charter school, or special education school, statistics show that families and society are better off when parents can choose which school works for their children, be it religious, public, or private. And a tax credit promoting tuition scholarships is hardly an establishment of a formal religion.
While I’m a firm believer in states’ rights, just because a state has a provision doesn’t mean it’s moral, ethical, or should ever have existed in the first place — especially if it’s steeped in bigotry, as Blaine Amendments are. Let’s hope the Supreme Court lays down a landmark ruling in favor of school choice, against bigoted Blaine Amendments, and in favor of the rights of people such as Espinoza.
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.
