It took a century and a half, but the Supreme Court finally rejected the Blaine amendments. The Court’s decision in Espinoza v. Montana Department of Revenue is a victory for religious believers, schoolchildren, poor and working-class parents, and the rule of law. It is a loss only for bigots, militant secularists, and the teachers’ unions. The scandal is that four members of the Court would have gone the other way.
Kendra Espinoza, a Montana single mother working three jobs, had a scholarship to send her daughters to a private school of her choice; she chose Stillwater Christian School. The scholarship was partly funded by tax credits from the state that were available for parents to choose any private school, religious or not. Then, the Montana supreme court stepped in, ruling that because the program included religious schools, the whole thing had to be shut down for everyone.
The reason was Montana’s Blaine amendment. A relic of open anti-Catholic prejudice in the late 1800s, more than three dozen states have such amendments to their constitutions banning any state funds from going to any sectarian school or institution. “Sectarian” was code for “Catholic.” In practice, these amendments often mean that state school-choice vouchers and other state programs discriminatorily exclude religious schools and institutions. The Court today called that what it is: religious discrimination. The Court did not need to get into the toxic history of these amendments — which Justice Alito recounted in graphic detail — to conclude that they discriminate on their face against believers.
Chief Justice John Roberts’s opinion carefully focused on discrimination against “religious status and not religious use,” but Justice Neil Gorsuch reminded him that the First Amendment’s protections are broader than that: The Free Exercise Clause “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. . . . Our cases have long recognized the importance of protecting religious actions, not just religious status. . . . What point is it to tell a person that he is free to be a Muslim but he may be subject to discrimination for doing what his religion commands” even if “deep faith . . . requires [him] to do things passing legislative majorities might find unseemly or uncouth”? For Gorsuch, who only recently expanded federal anti-discrimination protections for gay or transgender Americans, this is a shot across the bow of those who themselves would use those protections as weapons of discrimination against believers.
What is alarming is that four members of the Court were content in the first place to stand in the schoolhouse door against parents such as Espinoza. Justice Breyer, for his part, wrung his hands over the fate of taxpayers hostile to religious belief. Worse, three Justices — Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan — would have ruled that it was not religious discrimination at all for the Montana supreme court to completely shut down the scholarship program solely because it included religious schools. If this was a race discrimination case, nobody would have any illusions what was happening. Justice Sotomayor’s opinion even discussed Jim Crow-era “massive resistance” cases without admitting the parallel.
The apoplectic response of the National Education Association — which mentions Betsy DeVos four times and the Constitution only once — illustrates the real stakes in Espinoza: fear that parents will vote with their feet to choose religious schools over the public-school monopoly. “An extreme Supreme Court just joined the far-right effort to undermine one of our country’s most cherished democratic institutions: public education,” the NEA shrieked. “DeVos’s voucher schemes divert already scarce dollars from neighborhood public schools and funnel those funds to private schools, which are neither nor accountable to taxpayers.” [sic] Teacher, heal thyself.