James Hirsen is a lawyer, author, commentator and former professor at Trinity Law School. To support the petitioners in Espinoza against the Montana Department of Revenue, he submitted an Amicus letter on behalf of the Justice and Freedom Fund, the Institute for Faith and Family, and the North Carolina School Choice.
The Supreme Court decision in Espinoza v Montana will determine how the religious clauses of the First Amendment would apply to state and local restrictions on the use of public funds. In particular, the decision drastically limits the scope of a type of restriction that states have applied for more than a century.
At first glance, the factual background of Espinoza may seem harmless. The Montana Legislature set up a modest tax credit scholarship program that benefits those who donate to organizations that in turn award grants to elementary school students. Kendra Espinoza tried to use the state program to send her two daughters to a Christian school.
However, the Montana Treasury issued a rule for the program that prohibited families from using scholarships at religious schools. The department cited an amendment to the state constitution that "directly or indirectly appropriates or pays from public funds or funds … for sectarian purposes or to support churches, schools, academies, seminars, colleges, universities, or other literary or scientific institutions that prohibit institutions is wholly or partly controlled by a church, sect or denomination. “The Montana Supreme Court later ruled that the division was not authorized to issue its rule. However, the court also ruled that the scholarship program was invalid on its own terms because it was contrary to the state's constitutional provision.
Montana is one of more than three dozen states that have regulations that prohibit the distribution of public funds to religious institutions. These restrictions are often referred to as "Blaine changes". Montana's version, first adopted in 1888 and re-adopted in 1972, is one of the stricter clauses in this genre.
Blaine amendments have a dubious origin, which Judge Samuel Alito carefully outlined in his consistent opinion in Espinoza. When reviewing the story, Alito quotes the work of numerous Amici, including an organization I founded, Justice and Freedom Fund.
Alito pointed out: “Montana's provision was based on the failed Blaine amendment to the United States Constitution. Named after House of Representatives spokesman James Blaine, the congressman who introduced it in 1875, the change was triggered by virulent prejudice against immigrants, especially Catholic immigrants. … As mentioned in a publication by the United States Commission on Civil Rights, the Ku Klux Klan was a prominent supporter of this ban. “The anti-Catholic discrimination that motivated these Blaine restrictions“ without help ”- unfortunately an acceptable practice in the 19th century – resulted in Catholic schools being bluntly excluded from non-profit programs.
A mourning song began after the 2017 Supreme Court ruling against Comer at the Lutheran Trinity Church against Comer, in which the court examined a Missouri version of a Blaine amendment and found that a religious pre-school could not be denied funds for playground re-emergence sound like Blaine funding restrictions. Trinity Lutheran made it clear that the exclusion of institutions from non-profit programs based solely on their religious affiliation “is contrary to our constitution… and cannot exist”. Of course, this was not a good sign of the continued legal viability of Blaine-style provisions.
However, Blaine amendments continued to be routinely used to prevent government school election vouchers and other government funding programs from benefiting religious schools and institutions. Educational election programs slowed down or were temporarily blocked.
Espinoza clearly stated that Montana's Blaine change – at least as applied by the Montana Supreme Court to the scholarship program – is incompatible with the first change. As Chief Justice John Roberts wrote in the majority opinion, Montana's Blaine provision does not focus on a particular “essentially religious” lesson at a religious school. Rather, as we explained earlier, the no-aid provision prohibits any help to a religious school "simply based on what it is", giving the school the choice of being religious or receiving government benefits. "Roberts continued that the Montana Supreme Court's application of the Blaine amendment is subject to the" strictest review "under the free exercise clause.
Various public education groups have expressed concern that the Espinoza Court, which severely restricts the Blaine changes, has now opened the gates to public funding for private religious education. However, Espinoza's decision does not require a state to initiate a private school election program. "A state doesn't have to subsidize private education," Roberts wrote. "But once a state decides to do so, it cannot disqualify some private schools simply because they are religious."
The concept known as the "school choice" hovers both over the Espinoza holding and over the reactions to it. School choice refers to a policy whereby public funds follow students to the schools or services that best suit their needs. Parents can then choose from a variety of educational options, including public schools, private schools, religious schools, charter schools, and home schools.
The idea that parents should have access to meaningful educational opportunities for their children should not be controversial. In this way, parents routinely choose higher education for their college-age sons and daughters. Numerous states offer school vouchers, tax credit grants, and educational savings accounts to help pay for tuition at private schools, including religious ones.
In this case, judge Elena Kagan, who campaigned for the majority of the Lutheran Trinity, asked a question of evidence during the hearing: “You did not tell the churches any money. Why can the state grant police protection or fire protection to churches?
Public funds are routinely used for services that benefit non-religious and religious institutions alike, e.g. These include maintenance of roads and public areas, fire protection, police protection and health inspections. Religious hospitals also treat everyone. Religious universities offer classes to all students. Religious daycare centers offer health, education and childcare to all young people.
The choice of school triggered many discussions about the legal viability of Blaine changes. After the Supreme Court severely restricted the scope of these changes, families may feel more encouraged to apply for tax credit grants to send their children to schools of their choice, including private religious schools.
Symposium: Abolishing the Blaine Changes,
SCOTUSblog (July 2, 2020, 3:04 pm),