Bench Memos

Law & the Courts

The Court Delivers a Major Win for Religious Freedom

(Jonathan Ernst/Reuters)

Yesterday the Supreme Court handed down a major victory for religious liberty and for people of faith as it eviscerated the insidious Blaine amendment for schools. In Espinoza v. Montana Department of Revenue, a 5–4 majority of the Court pushed back on a shameful, 150-year legacy of discrimination against religious schools in an opinion written by Chief Justice Roberts. He was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.

In 2018, the Montana Supreme Court held that legislation that gave residents up to a $150 tax credit for contributions to a scholarship program violated the state’s “Blaine amendment.” Blaine amendments are anti-religious state constitutional provisions enacted in many states during the 19th century and early 20th century to prevent the government from funding Catholic schools. They have also been used to block funding to Jewish and Mormon schools, and Christian-run schools for freed slaves. The only reason the Montana court struck down the scholarship program was that it gave parents the choice of applying it to religious schools.

As Roberts explained for the Court, that is clearly inconsistent with the Free Exercise Clause of the First Amendment. The Court had articulated the relevant principle in Trinity Lutheran Church v. Comer (2017), where it held that an otherwise neutral and secular public benefit cannot be denied on account of an entity’s religious status. But the Court’s tradition of respecting parental decisions about their children’s education and religious upbringing goes back nearly a century to precedents like Pierce v. Society of Sisters (1925), which predates modern Free Exercise jurisprudence, and later Wisconsin v. Yoder (1972).

That is not to overlook another body of decisions over the years that applied the First Amendment’s other religion clause — the Establishment Clause — in a way that, as Justice Thomas described in a concurring opinion, “bordered on religious hostility.” As just one example, consider that in 1985, the Court had gone as far as to bar public school teachers from providing assistance at parochial schools, for fear they would “subtly (or overtly) conform their instruction to the environment in which they teach.” That decision, School District of Grand Rapids v. Ball, would be overruled twelve years later. Still, Thomas noted that the “Court’s interpretation of the Establishment Clause continues to hamper free exercise rights.”

Justice Gorsuch joined Justice Thomas’s concurrence. Both agreed with the Court that identifying discrimination based on religious status was enough to decide this case, but added that there is no meaningful distinction between such status and religious conduct. Gorsuch eloquently elaborated in his own concurrence: “The Constitution forbids laws that prohibit the free exercise of religion. That guarantee 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 did not need to reach a conclusion on that distinction in this case, but the door is open for future decisions embracing an expansive protection of religious freedom.

Expect the four liberal justices to continue to dissent from any such effort. Their view of the religion clauses continues to constrict free exercise. Justice Breyer, who is known for taking muddled positions in this area, objected to the majority’s rigorous standard, advocating instead a “flexible, context-specific approach” in which judges have free rein. (And, consequently, reach confusing results.) Justice Sotomayor continued to disagree with Trinity Lutheran Church and left no doubt she would prefer the earlier, less protective standard for free exercise. In fact, she called the Court’s ruling “perverse” and downplayed its historical analysis.

Roberts did not mince words about the history of Blaine amendments. He incorporated into the Court’s opinion a twenty-year-old plurality opinion’s observation: “The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’; many of its state counterparts have a similarly ‘shameful pedigree.’”

Justice Alito wrote a concurrence that recounted in detail the Blaine amendments’ history as a vehicle for “virulent prejudice against immigrants, particularly Catholic immigrants.” He included in his opinion a notorious 1871 cartoon from Harper’s Weekly that depicted Catholic bishops as crocodiles preying on American children while a public school in the background crumbles. The movement to found common schools, which had roots in the first half of the 19th century, cannot be separated from nativism, Alito explained. It aimed to “inculcate a form of ‘least-common-denominator Protestantism’” through daily readings from the King James Bible, an affront to Catholics and non-Christians. “Catholic and Jewish schools sprang up because the common schools were not neutral on matters of religion.”

The justices in the majority have gone a long way toward blotting out the stain of religious bigotry that has permeated so much of the law in this area. They should be applauded for stating clearly that laws like Montana’s that treat people of faith like second-class citizens have no place under our Constitution.

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