Supreme Court Strikes Down Montana Blaine Amendment Barring State Aid to Religious Schools
While I am happy about the result of this decision, I am troubled, though not surprised, by the 5-4 division along ideological lines, which replicates the one that happened in the 2018 travel ban case (with the exception of Justice Kennedy, who has since retired from the Court). The conservative justices who turned a blind eye to religious discrimination in the travel ban case consider it imperative to strike it down here. The liberal justices, for their part, have the opposite bias. That ideological division is likely to be replicated in commentators' reactions to the ruling, as well. It is, I fear another example of how both liberals and conservatives are often inconsistent in their approach to issues of religious discrimination.
S E E D E D C O N T E N T
The decision is an important victory against government discrimination on the basis of religion.
Ilya Somin|The Volokh Conspiracy| 6.30.2020 1:55 PM
James G. Blaine, the 19th century politician who inspired the Blaine Amendments.
This morning, the Supreme Court issued its decision in Espinoza v. Montana Department of Revenue, striking down Montana's state constitutional Blaine Amendment, which forbids state aid to "any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination." The decision overrules a Montana Supreme Court decision striking down a state school choice program that had provided tax credits on an equal basis to students attending both religious and secular private schools. Today's ruling is an important victory for religious freedom, specifically the principle that government policy should not discriminate between private organizations and individuals on the basis of religion.
The decision is a close 5-4 ruling, split along ideological lines with the five conservative justices in the majority, and the four liberals all dissenting. To my mind, that is unfortunate. Striking down blatant government discrimination on the basis of religion should not be so controversial and divisive.
While there are a number of complexities in the case, Chief Justice John Roberts' majority opinion effectively captures the main issue:
The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, "protects religious observers against unequal treatment" and against "laws that impose special disabilities on the basis of religious status." Trinity Lutheran….Those "basic principle[s]" have long guided this Court….
Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the "unremarkable" conclusion that disqualifying otherwise eligible recipients from a public benefit "solely because of their religious character" imposes "a penalty on the free exercise of religion that triggers the most exacting scrutiny…."
Montana's no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. This is apparent from the plain text. The provision bars aid to any school "controlled in whole or in part by any church, sect, or denomination." Mont. Const., Art. X, §6(1). The provision's title—"Aid prohibited to sectarian schools"—confirms that the provision singles out schools based on their religious character….
When otherwise eligible recipients are disqualified from a public benefit "solely because of their religious character," we must apply strict scrutiny. Trinity Lutheran…
The Blaine Amendment doesn't exclude only those religious schools which fail to meet neutral educational standards, or have some other kind of flaw. All religious schools are categorically barred from receiving state assistance for which similar secular institutions are eligible. That is clearly discrimination on the basis of religion, if anything is. The opinion goes on to explain that the Blaine Amendment cannot possibly survive strict scrutiny, as there is no narrowly tailored state interest that can justify a categorical ban on aid to religious schools, while simultaneously permitting aid to otherwise similar secular ones.
The dissenting justices argue that state governments must be free to discriminate against religious institutions in at least some instances, in order to avoid Establishment Clause programs. Here, for example, is a relevant passage from Justice Sotomayor's dissent:
Contra the Court's current approach, our free exercise precedents had long granted the government "some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws….." Here, a State may refuse to extend certain aid programs to religious entities when doing so avoids "historic and substantial" antiestablishment concerns. Locke [v. Davey], 540 U. S., at 725…. Indeed, one of the concurrences lauds petitioners' spiritual pursuit, acknowledging that they seek state funds for manifestly religious purposes like "teach[ing] religion" so that petitioners may "outwardly and publicly" live out their religious tenets. Ante, at 3 (opinion of GORSUCH, J.). But those deeply religious goals confirm why Montana may properly decline to subsidize religious education. Involvement in such spiritual matters implicates both the Establishment Clause, see Cutter, 544 U. S., at 714, and the free exercise rights of taxpayers, "denying them the chance to decide for themselves whether and how to fund religion…"
This is a longstanding argument offered by defenders of discriminatory exclusion of religious institutions from government education programs. But it is dangerously flawed. If there is a violation of the Establishment Clause or the Free Exercise Clause any time the state provides assistance that helps religious people engage in "spiritual pursuits," then the same argument can be used to justify excluding religious institutions from virtually any government service or tax credit. If the government provides police and fire department protection to religious institutions on the same basis as secular ones, that facilitates worshippers' "spiritual pursuits" and denies taxpayers " the chance to decide for themselves whether and how to fund religion." The same point applies if the government gives tax exemptions to religious charities on the same basis as secular ones (as both the federal and state governments routinely do).
You don't have to adopt many conservatives' unduly narrow interpretation of the Establishment Clause (which they interpret as barring only the establishment of an official church or as directly coercing people to take part in its services) to recognize that nondiscrimination is not establishment. Even if government endorsement of religion also qualifies as an "establishment," merely treating religious institutions the same as secular ones does not count as such an endorsement. For example, no one claims that the government endorses religion when it gives legal effect to religious wedding ceremonies on the same basis as purely secular ones.
There is an in-depth debate between the majority and the dissenters over whether Espinoza can be distinguished from the Court's 2004 decision in Locke v. Davey, which upheld a state law denying scholarships to students pursuing degrees in "devotional theology" for the purpose of studying for the ministry. I think Roberts has the better of this debate, but I will not try to cover it in detail here. I would note, however, that there is an obvious difference between refusing to fund studies for a degree devoted to a specific subject matter, and categorically denying funding to all students attending religious institutions, even if they meet the curricular standards required for secular schools to be eligible for assistance.
Funding of education necessarily requires some criteria for determining which subjects have to be taught in order to qualify. Otherwise, the state would end up subsidizing attendance at institutions that only teach material that is completely irrelevant to the state's educational objectives—for example a school whose curriculum consists solely of training to repair obsolete typewriters. Imposing neutral curricular requirements in a scholarship program is different from categorically barring participation by religious schools, even if they cover the subjects required by the state just as well as secular ones do.
Two of the dissenters—and many of Montana's supporters in the legal academy—argue that there is no actual discrimination on the basis of religion here, because the net effect of the Montana Supreme Court's ruling enforcing the Blaine Amendment was to invalidate the entire school choice program, thereby denying aid to both religious and secular private schools. For example, Justice Ruth Bader Ginsburg argues that Montana simply "put all private school parents in the same boat."Roberts has a good response to that point:
The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other "mechanism" to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program…. The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. But the Court's error of federal law occurred at the beginning. When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation…. Because the elimination of the program flowed directly from the Montana Supreme Court's failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision..
Imagine that a state legislature enacted a school choice program similar to Montana's, and that the state supreme court then struck it down because it violated a provision in the state constitution barring state aid to racially integrated schools. The state could then argue there was no racial discrimination here, because the end result of the ruling was that students attending both segregated and integrated private schools are denied tax credits. Few would deny that the state government would be acting unconstitutionally in such a case, because the denial of tax credits was the result of a provision in state law that explicitly discriminates on the basis of race. The Montana Supreme Court ruling enforcing the Blaine Amendment in Espinoza qualifies as discrimination on the basis of religion, for exactly the same reason.
Montana remains free to deny state assistance to all private schools alike. But it cannot do so on the basis of a state law that requires discrimination on the basis of religion, and thereby leads to the invalidation of tax credit programs that do not themselves discriminate in this way.
Finally, it is worth mentioning the fact that Montana's original Blaine Amendment was enacted in 1889, as part of a nationwide Blaine Amendment movement motivated by bigotry against Catholic immigrants. Justice Alito discusses the relevant history in some detail in his concurring opinion. Normally, this kind of bigoted motivation would be enough to strike down a government policy, even if it was ostensibly neutral on its face. Here, the issue of motivation is not crucial, because the Blaine Amendment does in fact discriminate on the basis of religion on its face. It explicitly discriminates against religious schools, relative to secular ones.
However, I also agree with the argument that the bigoted motivation behind the law provides an independent basis for striking down Blaine Amendments. If the enactment of a seemingly neutral law or policy is motivated by unconstitutional discrimination on the basis of religion (or some other forbidden criterion), it should be invalidated unless the government provides strong evidence that it would have enacted the same law or policy even in the absence of unconstitutional motives. I have defended this principle in other contexts, such as the Trump travel ban case, and it applies here too. It is unfortunate that both liberal and conservative justices seem to apply it inconsistently, depending on whose ox is being gored in the particular case at hand.
In the case of Montana, this is is admittedly complicated by the fact that the Blaine Amendment was reenacted in 1972, as part of the process of drafting a new state constitution. The 1972 framers arguably did not have the same bigoted motives as those who enacted the 1889 version.
This raises the issue of whether the reenactment "cleanses" the taint created by the bigotry of the 1880s. I cannot fully do justice to this complicated issue in a blog post that is already too long. But I will say that such "cleansing" can only occur if the reasons for reenactment are not themselves tainted by unconstitutional motives. In this case, such a standard will be difficult to meet, because the Amendment discriminates on the basis of religion on its face. Thus, the motives for reenactment necessarily involve some form of discriminatory hostility towards religious institutions, even if no longer focused primarily on Catholics. In his opinion, Alito makes some additional points on why the 1972 reenactment remained tainted by unconstitutional motives. He also (correctly) points out that the reenactment issue does not arise in the case of the many states that still have Blaine Amendments dating back to the original 19th century Blaine movement, and not reenacted since.
Ultimately, the issue of motive isn't crucial in this case. It is enough that the Montana provision discriminates against religious institutions on its face.
While I am happy about the result of this decision, I am troubled, though not surprised, by the 5-4 division along ideological lines, which replicates the one that happened in the 2018 travel ban case (with the exception of Justice Kennedy, who has since retired from the Court). The conservative justices who turned a blind eye to religious discrimination in the travel ban case consider it imperative to strike it down here. The liberal justices, for their part, have the opposite bias. That ideological division is likely to be replicated in commentators' reactions to the ruling, as well. It is, I fear another example of how both liberals and conservatives are often inconsistent in their approach to issues of religious discrimination.
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The Case for a Consistent Approach to Government Discrimination on the Basis of Religion
"Both right and left decry implicit government discrimination on the basis of religion when it targets groups they sympathize with. But both are all too ready to turn a blind eye in other cases."
Let's see how long it takes for the 'whataboutism' arguments to show up.
This of course isn't about whataboutism. This is about consistency. Something I've been trying to preach on this site for quite a while. Consistency is a difficult thing to achieve. It takes a lot of dedication and focus to the task at hand.
I don't think peoples' tax dollars should pay for religious schools.
Let their parents pay for their schooling.
Everyone pays taxes for public education.
The issue was that the state could provide funds to all private schools except religious schools. It is a discrimination case, not a religious case.
Well then, the state shouldn't provide funds to all private schools either. Their parents need to pay for their schooling.
"The decision is an important victory against government discrimination on the basis of religion."
This is very misleading then.
No, they're not Reggin. Their taxes pay for public schools, not private schools.
No.
Time to tax the churches! They want tax money to go to religious schools, they need to contribute.
I agree that it's disappointing to see the 5-4 split in this case. This was a relatively narrow issue and the Trinity Lutheran decision set the obvious precedent. This should not have been this close.
I've got to study this one a bit more.....
Lots of ramifications here since two parts of the first amendment were put in conflict with one another. Any other analysis out there?
I hadn't been involved in the education system for 35 years until my grandchildren were living with us. God how it has changed. The government needs to get out of the business. The poor teachers can't teach because the buracracy is overwhelming.
You also need to remember that the separation of church and state is for the federals, it doesn't apply to the states. A common misconception, but we have (for the moment anyway) a federalist system.
Thanks for the clarification Steve. To your knowledge, have any states ever tried to promote a state religion (except for Texas and football....)?
I went to Permian High School in 1970. No need to remind me of that desolate period of my life.
I don't know of any state that has promoted a specific religion. I'll see if I can come up with something.
Well, that wasn't my experience. My two oldest grandkids are both autistic, so we went to many a meeting. I couldn't believe the amount of state/federal rules that had to be followed. Hell, they were lucky to have anytime at all to teach there was so much paper work.
They actually had both. There was one teacher in charge of the Autistic Unit with whom they had 2 classes a day. The rest of the classes were with the 'general population'.
Yes - North Carolina was in the process of giving it a shot in 2013. They were, I think, hoping for a reversal of
Everson vs. The Board of Education of Ewing Tp. 1947
which ruled that the Establishment Clause to include States.
I'm going to post this as a general comment, for there are a couple of people wanting an answer to the same question. That of the right banning muslims.
Of course, the best and most recent case would be the Travel Ban. The Supreme Court upheld the ban, but I, and others, believe it was an incorrect decision. It is still the law of the land, currently, but it doesn't mean I have to like it.
Now the Blaine decision was based very much on the intent of the amendment. If you read the writings of Blaine, you will discover that not only was he prejudiced against religious schools, he was prejudiced against Catholics in particular. In fact, you could say the Blaine amendment was a Catholic ban.
(Please read both articles and follow the links. I don't intend to read them for you. )
So, let's look at the Travel Ban, or as some call it, the Muslim Ban.
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The Supreme Court's ruling was based on state officials' apparent hostility to the bakers' religious beliefs. There is far stronger evidence of such hostility in the travel ban case.
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As I said earlier, the Blaine Amendment case was essentially decided on 'intent'. If we are to be consistent, then shouldn't the travel ban have been decided on 'intent'?
So what then was the 'intent' of the travel ban? From Trump's own words, and much to the glee of his rally goers at least, it was to ban Muslims from coming to this country.
But how do we determine intent? Courts do it all the time and so do we. If your wife says, “Your a mess!” What is the intent? Oh, I need to pick up my clothes and straigten my part of the closet. We do it all the time, day in and day out.