Symposium: A takedown of the Blaine Amendments

James Hirsen is an attorney, author, commentator and former professor at Trinity Law School. He filed an amicus brief on behalf of the Justice and Freedom Fund, Institute for Faith and Family and North Carolina School Choice in support of the petitioners in Espinoza v. Montana Department of Revenue.

The Supreme Court’s decision in Espinoza v. Montana Department of Revenue will shape how the First Amendment’s religion clauses apply to state and local restrictions on how public money is spent. In particular, the decision drastically limits the scope of one type of restriction that states have employed for more than a century.

The factual background of Espinoza may at first blush appear innocuous. The Montana legislature established a modest tax credit scholarship program, which conferred a benefit to those who donate to organizations that, in turn, grant scholarships to elementary school students. Kendra Espinoza sought to utilize the state’s program to send her two daughters to a Christian school.

The Montana Department of Revenue, however, issued a rule for the program that had the effect of barring families from using the scholarship funds at religious schools. The department cited an amendment to the state’s constitution that prohibits “direct or indirect appropriation or payment from any public fund or monies … for any sectarian purpose or to aid 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 Montana Supreme Court later held that the department lacked the authority to issue its rule — but the court also held that the scholarship program, on its own terms, was invalid because it conflicted with the state’s constitutional provision.

Montana is one of more than three dozen states that have provisions barring distribution of public funds to religious institutions. These restrictions are oftentimes referred to as “Blaine Amendments.” Montana’s version, which was first adopted in 1888 and re-adopted in 1972, is one of the stricter clauses in this genre.

Blaine Amendments have a dubious origin that is painstakingly outlined by Justice Samuel Alito in his concurring opinion in Espinoza. In reviewing the history, Alito cites the work of numerous amici, including an organization I founded, Justice and Freedom Fund.

Alito pointed out the following: “Montana’s provision was modeled on the failed Blaine Amendment to the Constitution of the United States. Named after House Speaker James Blaine, the Congressman who introduced it in 1875, the amendment was prompted by virulent prejudice against immigrants, particularly Catholic immigrants. … As noted in a publication from the United States Commission on Civil Rights, a prominent supporter of this ban was the Ku Klux Klan.” The anti-Catholic discrimination that motivated these “no aid” Blaine restrictions — sadly, an acceptable practice in the 19th century — had the effect of bluntly excluding Catholic schools from public benefit programs.

After the Supreme Court’s 2017 decision in Trinity Lutheran Church v. Comer, in which the court considered a Missouri version of a Blaine Amendment and held that a religious preschool could not be denied funds for playground re-surfacing, a funeral dirge began to sound for Blaine funding restrictions. Trinity Lutheran made clear that excluding institutions from public benefit programs based solely on their religious affiliation is “odious to our Constitution … and cannot stand.” This, of course, did not bode well for the continued legal viability of Blaine-style provisions.

Yet Blaine Amendments continued to be routinely utilized for the purposes of preventing state school-choice vouchers and other state funding programs from benefiting religious schools and institutions. Educational choice programs slowed or, at times, were blocked outright.

Espinoza unequivocally determined that Montana’s Blaine Amendment — at least as the Montana Supreme Court applied it to the scholarship program — is inconsistent with the First Amendment. As Chief Justice John Roberts wrote in the majority opinion, Montana’s Blaine provision “does not zero in on any particular ‘essentially religious’ course of instruction at a religious school. Rather, as we have explained, the no-aid provision bars all aid to a religious school ‘simply because of what it is,’ putting the school to a choice between being religious or receiving government benefits.” The Montana Supreme Court’s application of the Blaine Amendment, Roberts continued, is subject to “the strictest scrutiny” under the free exercise clause.

Various public education groups have expressed anxiety that the Espinoza court, in severely limiting Blaine Amendments, has now opened the floodgates for public funding of private religious education. However, the Espinoza decision does not require any state to initiate a private school-choice program. “A State need not subsidize private education,” Roberts wrote. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The concept known as “school choice” hovers over both the Espinoza holding and the reactions to it. School choice refers to a policy in which public funds follow students to the schools or services that best fit their needs. Parents are then able to choose from the panoply of educational options available, which may include public schools, private schools, religious schools, charter schools and home schools.

The notion that parents should be able to have access to meaningful educational options for their children should not be a controversial one. Parents routinely choose higher education for their college-age sons and daughters in this precise manner. Scores of states offer school vouchers, tax credit scholarships, and educational savings accounts to assist in the payment of tuition at private schools, including those that are religious in nature.

Justice Elena Kagan, who sided with the majority in Trinity Lutheran, asked a probative question during oral argument in that case: “You said no money to churches. Why can the state provide police protection or fire protection” to churches?

Public funds are routinely used for services that benefit non-religious and religious institutions alike, such as the maintenance of roads and public areas, fire protection, police protection, and health inspections. Similarly, religious hospitals provide treatment to all people. Religious universities provide instruction to all students. And religious daycare centers provide health, education, and childcare to all young ones.

School choice has been the catalyst for many a discussion over the legal viability of Blaine Amendments. Now that the Supreme Court has severely limited the scope of those amendments, families may feel more emboldened to seek out tax credit scholarships for use in sending their children to schools of their own choosing, including private religious ones.