NRPLUS MEMBER ARTICLE T oday’s Supreme Court decision in Espinoza v. Montana Department of Revenue, allowing Montanans to use generally available private-education tax credits for religious as well as non-religious schools, really should not have been a hard one. The Court’s precedents since the 1940s have increasingly defended the right of religious believers and institutions to receive government aid on an equal footing with non-religious people and institutions. While Chief Justice John Roberts’s reasoning in Espinoza was characteristically modest, the case also likely marks a long-overdue death blow to openly anti-Catholic Blaine amendments adopted by many states in the 1870s and 1880s and defended by anti-religious progressives and public-school teachers’ unions to this day. What should be shocking is that the decision was 5–4.
Montana’s system funded scholarships for students with disabilities or financial difficulties to attend private schools. The scholarships were administered by a private organization, Big Sky Scholarships, but under state-mandated rules. Montana gave tax credits to the organization’s donors to help finance the scholarships. Nearly any private school, religious or not, qualified.
Montana, however, was one of 38 states to adopt a Blaine amendment to its state constitution, which prohibits “any direct or indirect” use of state funds 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 amendment was pressed on Montana by anti-Catholic politicians (many of whom were still found among nativist congressional Republicans at the time) when Montana became a state in 1889. It was later adopted in its current form in 1972. Justice Samuel Alito’s concurring opinion details some of the garish history (cited in many of the briefs in the case) showing that “sectarian” was universally understood at the time to mean “Catholic.”
In the early decades of American history, especially before the widespread creation of public-school systems directly operated by the government, religious schools were frequently allowed federal or state government funding on an equal basis with non-religious schools, with the significant exception that Americans after the Revolution turned away from funding schools for clergy themselves. As Catholic immigration to America (largely, at first, from Ireland and southern Germany) took off between the 1830s and 1850s, however, an anti-immigrant and anti-Catholic backlash began. That backlash eventually focused on the fact that Catholics established their own schools, the largest system of religious schools in the nation. In 1875–76, House Republican leader James G. Blaine proposed an amendment to the federal constitution banning any aid to sectarian schools. The amendment, supported (to his discredit) by President Ulysses S. Grant, passed the House with strong bipartisan support but fell just short in the Senate, and its ugly legacy helped cost Blaine the presidency in 1884. His amendment, however, was instead enshrined in many state constitutions, including those of states such as Montana that were newly admitted between 1875 and 1912. Nearly all of those amendments are still on the books in some form. Not until 1925, in a fight against an Oregon law supported by the Ku Klux Klan, would Catholics persuade the Supreme Court to guarantee a right to even attend private, religious schools.
Espinoza was brought by parents looking to send their children to a Christian (not Catholic) school. After a protracted court fight, the Montana supreme court shut down the entire program — for religious and non-religious schools alike — finding that it violated the Blaine amendment’s second provision, on aid to sectarian institutions. That decision was the last word on the meaning of the amendment under state law, but it presented the Supreme Court with the question of whether the free-exercise clause of the First Amendment is violated by a Blaine-amendment restriction that treats religious schools differently from private, non-religious schools.
The Court had no trouble concluding that it did, and swept aside any argument that states could restrict aid to religious people or institutions on an unequal basis. Its decision shows the general growth of the non-discrimination principle in federal constitutional law. Under that principle, the Court requires that government benefits or access to government facilities be provided on a religion-neutral and viewpoint-neutral basis in roughly the same way that it requires government action to be race-neutral. The result has been a fairly consistent body of case law across the free-exercise and free-speech clauses of the First Amendment, the equal-protection clause of the 14th Amendment, and sometimes — more curiously — the due-process clauses of the Fifth and 14th Amendments.
It is somewhat questionable, as an original matter, whether these various amendments were really intended to apply to all the areas they now govern. But the scope of government activity in modern America simply presents many more programs and facilities than existed in 1866 or 1791. The principle itself, however, has deep roots, and in Espinoza, only Justice Stephen Breyer questioned whether state programs could discriminate on the basis of religion. Breyer did not argue with the roots of the doctrine, however; his concern was that the establishment clause should limit how far the principle goes in the vast array of things the government does. Justices Clarence Thomas and Neil Gorsuch, by contrast, offered a different historical case for rethinking the direction of the law, arguing that the Court should reconsider its application of the establishment clause to the states.
Roberts left two doors potentially open for further cases. One was whether the Court would draw the line at more-direct forms of state aid to religious schools, in contrast to Montana’s program, in which parents controlled the direction of the money. While Roberts mentioned that as a particular reason to find that the program merely put religious and non-religious schools on the same footing, the reasoning of Espinoza does not depend on it. Still, most state school-choice and school-aid programs are either designed like Montana’s (to have the money follow the student) or offer aid for obviously non-religious uses such as school buses. For conservative supporters of school-choice programs, today’s decision was the big event.
The other loose end is the question of what remains of the “sectarian use” prong of Montana’s Blaine amendment. There was no serious effort made in the case to claim that Montana’s program of supporting accredited schools for general education was a sectarian use. Indeed, Chief Justice Roberts noted that the case was about “religious status and not religious use,” drawing a rebuke from Justice Gorsuch that the First Amendment “protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.”
The Court distinguished this case from Locke v. Davey, a 2004 case that upheld a state decision to exclude the training of clergy from a scholarship program for professional training. (Still on the Court’s docket, and likely coming in the next two days, is another case involving the limits of government involvement in religious employers’ discipline of employees carrying out religious duties). Roberts stressed that the Founders’ fears of state aid to the clergy itself were different, historically, from aid to the education of religious believers.
The narrow, uncontroversial grounds of Roberts’s opinion can be seen in contrast to Justice Alito’s concurrence, which highlighted the bigoted motivations behind the Blaine amendments. The question is whether government policies can be struck down solely due to the bad motives of political actors. Roberts, in several immigration-related cases, has resisted the liberals’ effort to limit presidential powers based on Donald Trump’s tweets and statements. The Blaine amendments and other older liberal enactments such as the Davis-Bacon Act have been a looming presence in the background of those arguments: If Trump’s motives matter, do those of lawmakers matter too? Alito dissented vigorously in the non-unanimous-jury case, Ramos v. Louisiana, arguing at the time that if the Court was going to cite the racist origins of non-unanimous jury verdict rules in Louisiana and Oregon, it was opening the door to doing so in other cases.
Today, Alito drove that point home directly, arguing that the Court should pull up the Blaine amendments by the roots due to their Klan support and other obviously bigoted motivations behind them. Historically, he trained his fire directly at Horace Mann, the father of American public education, for aiming to impose the state’s vision to wean children away from Catholicism. Alito’s opinion serves as a marker and a warning that liberals have at least as much to lose as conservatives from getting too deep into the motives behind laws. He makes a point that resonates with religious parents today:
Catholic and Jewish schools sprang up [in the 19th century] because the common schools were not neutral on matters of religion. Faced with public schools that were culturally Protestant and with curriculums and textbooks that were, consequently, rife with material that Catholics and Jews found offensive, many Catholics and Orthodox Jews created separate schools, and those who could afford to do so sent their children to those schools. . . . [Montana’s] program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice. The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” [Quotations and citations omitted]
The Dissenters from Equality
Neither equality nor a history of bigotry moved the four dissenters, however. Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan took the bizarre stance that, because the Montana supreme court had struck down the entire program, it was not actually discriminating. In Justice Sotomayor’s words, the Montana supreme court “remedied the only potential harm of discriminatory treatment by striking down the program altogether.” But consider a hypothetical situation in which a state constitution bans aid to racially integrated private schools, and when a lawsuit tries to force a private-school aid program to include integrated schools, the state’s supreme court in that very lawsuit just shuts down the entire thing for the stated legal purpose that it could not see a penny go to an integrated school. That is precisely the sort of massive-resistance tactic the Court repeatedly disfavored in the 1960s, yet Sotomayor and Ginsburg would sanction it here.
In fact, to Justice Alito’s point, one notorious and not at all hypothetical example of the Court permitting this particular tactic came in the 1971 case of Palmer v. Thompson, in which a federal court ordered Jackson, Miss., to integrate its public swimming pools, and Jackson’s city council responded by closing all the pools entirely. The Court, in a 5–4 decision by Justice Hugo Black, held that the equal-protection clause had not been violated by the city council, because it closed the pools for everyone, and looking behind that decision for its motives would open the same sort of Pandora’s box that the Court remains hesitant to open. Black, a New Dealer and former Klansman, embodied that hesitancy.
When the Trump administration cited Palmer in the census case, liberal critics exploded. Slate, for example, thundered that “The Roberts Court Is Considering the Legal Reasoning of Jim Crow to Uphold a Rigged Census.” Yet Sotomayor even cites Palmer in her dissent, without even bothering to explain why she is not endorsing the same thing. Even if Palmer was decided correctly — if you accept the argument that judges should never look behind the making of laws to examine the motivations of political actors — that is no defense against considering on appeal the reasoning of a court citing a state law that explicitly requires discrimination. The reasoning of Sotomayor and Ginsburg amounts to drawing up a massive-resistance manual.
Finally, Sotomayor continued her resistance to Trinity Lutheran, a 2017 decision permitting aid to religious institutions on equal terms under the non-discrimination principle — a resistance to precedent in sharp contrast to how Roberts treated pro-abortion precedents just yesterday. Justice Stephen Breyer, while not joining in the pretense that the Montana supreme court was not engaging in religious discrimination and ostensibly not directly challenging Trinity Lutheran, cited the obvious fact that religious people have religious motives for sending their children to religious schools, and argued for a broader reading of Locke and the establishment clause to reflect Founding-era fears of “a grave threat to individual liberty and communal harmony in tax support for the teaching of religious truths. . . . Private choice cannot help the taxpayer who does not want to finance the propagation of religious beliefs, whether his own or someone else’s.” As the Court noted, however, Breyer did not offer his own standard other than a broad judicial role in policing the lines — a police power he is clearly eager to use against religious education. Breyer even argued that the Court was opening the door to challenges to the entire public-education system as requiring governments that fund public schools to also fund school choice for religious parents. It seems unlikely that the Court would buy that argument any time soon, but of course Justice Breyer is correct that maintaining a public-school system from which religion is legally excluded places religious parents in an unequal position from the outset. Giving state governments room to remedy that by supporting private choice is the least that can be done.