Because of Religion
On May 8, 2015, the Montana legislature enacted a tax-credit scholarship program to “provide parental and student choice in education.”[1] The program, like many others around the country,[2] provided a small tax credit to individuals and businesses who donated to private scholarship organizations.[3] These donations were then used to provide scholarships for children to attend private schools.
Shortly after the program’s creation, the Montana Department of Revenue issued a regulation (Rule 1) prohibiting scholarship recipients from using those funds to attend religious schools.[4] The Department said that Rule 1 was necessary to comply with Article X, Section 6 of the Montana Constitution, which prohibits any public financial aid to churches and religious schools.[5] Since over 70% of Montana’s private schools are religiously affiliated,[6] Rule 1 threatened to undermine the entire scholarship program. Montana citizen Kendra Espinoza, who was unable to send her children to private religious schools because of Rule 1, challenged it in court. The Montana Supreme Court responded by simply invalidating the entire scholarship program, declaring that the program was an unconstitutional governmental funding of religion.[7] The U.S. Supreme Court heard oral arguments on the case in January 2020.
Defining the issue in this case is the subject of considerable debate. Frank Ravitch, Walter H. Stowers Chair of Law and Religion at Michigan State University College of Law, argues that the core issue is “whether state governments must include religious entities in programs that could be available to nonreligious entities.”[8] However, this assertion misstates the issue because it focuses on only the Establishment Clause implications of the case. This case is in fact both an Establishment Clause case and a Free Exercise Clause case. The true inquiry is whether the government may bar religious organizations from participation in a neutral and generally available student aid program purely because the program affords students the choice of attending religious schools.
Most law and religion scholars agree that Petitioner Espinoza will likely prevail in this case for the following two reasons.
1. Both Rule 1 and the Montana Supreme Court’s ruling violate the Free Exercise Clause.
Rule 1 and the Montana Supreme Court’s invalidation of the scholarship program violate the Free Exercise Clause by discriminating on the basis of religion.[9] The Free Exercise Clause means that the government cannot exclude people “because of their faith . . . from receiving the benefits of public welfare legislation.”[10] Both Rule 1 and the Montana Supreme Court’s ruling display hostility toward religion by excluding certain institutions from “the benefits of public welfare legislation” solely because of their faith.
The First Amendment also requires that the government show neutrality toward religion.[11] Montana’s exclusion of religious entities from a program that every other entity and individual in the state can utilize is anything but neutral. This is because the state bases that exclusion on an evaluation of the religious nature of particular private schools that—in the state’s view—places them on less-than-equal footing than every other private school in the State of Montana.
The state argues that Locke v. Davey, the only case in which the Supreme Court has ever upheld the exclusion of a religious use of a government program, justifies the exclusion of religious entities in this case.[12] However, the Court upheld that exclusion because it was “narrow” and not hostile toward religion.[13] Montana’s exclusion of all religious participation shows clear hostility toward religion. Unlike the program in Locke, Rule 1 forces students who desire to attend religious schools to “choose between their religious beliefs and receiving a government benefit.”[14] “Indeed, Locke confirms the free exercise violation here.”[15]
The Montana Supreme Court’s Free Exercise violations are magnified by the history of Article X, Section 6, the Montana constitutional provision that underpins Rule 1. Article X, Section 6 is a “Blaine amendment” rooted in anti-Catholic bigotry. Senator James Blaine’s 1875 attempt to amend the U.S. Constitution to prohibit states from funding any institution that was “under the control of any religious sect” was really just an attempt to discriminate against Catholics.[16] Blaine’s amendment failed, but thirty-eight state constitutions subsequently enacted provisions mirroring his proposed amendment.[17] The Supreme Court has recognized that these state Blaine amendments were “born of bigotry”[18] and “have a shameful pedigree.”[19] The legislative history of Article X, Section 6 shows that the Montana delegates who passed that provision were motivated by anti-Catholic animus in the same way as Senator Blaine.[20] Catholics in Montana were subjected to public opposition,[21] including a large anti-Catholic riot in 1894 that occurred only five years after the Montana legislature enacted Article X, Section 6.[22]
Montana argues that the 1972 reaffirmation of Article X, Section 6 under different grounds—helping public schools—means that the provision’s Blaine amendment history is nullified.[23] However, that reaffirmation does not eliminate the anti-Catholicism that is the reason for that provision’s existence in the first place.[24] In fact, several Montana delegates argued during the 1972 convention that Article X, Section 6 should be removed from the state constitution because of the “remnants of a long-past era of prejudice,”[25] but the legislature voted not to do so.[26] The Montana legislature therefore failed to erase—and in fact “voted to maintain”—the bigotry underlying that provision.[27]
Article X, Section 6 is now enabling Senator Blaine’s distasteful purpose to continue.[28] The Supreme Court should ensure that the state cannot hide behind a Blaine amendment to avoid dealing with the clear Supreme Court precedent of Trinity Lutheran Church of Columbia v. Comer, which held that states cannot exclude religious entities from generally available funding programs.[29] Trinity Lutheran in fact requires the Supreme Court to invalidate Blaine amendments because it states that courts must impose strict scrutiny on “laws that target the religious for special disabilities.”[30] There is perhaps no clearer example of a law that “targets the religious for special disabilities” than a Blaine amendment.
Finally, the state argues that since the Montana Supreme Court struck down the entire scholarship program, the Free Exercise Clause was not violated.[31] This argument essentially asserts that because the state dodged the problem, the problem does not exist. The Supreme Court has held, however, that “eliminating a public program to prevent including a protected class in that program is just as discriminatory as excluding that class in the first place.”[32] In addition, the Montana Supreme Court’s ruling removes a benefit that numerous non-religious Montanans relied on.[33] The Montana Supreme Court would apparently rather give no one any scholarship than let religious entities take part in the program. Why non-religious private schools should have to pay for the religious bigotry enabled by Montana’s Blaine amendment is confusing, to say the least.[34]
2. The Montana Supreme Court’s Ruling Violates the Establishment Clause.
In keeping with their Lockean understanding of law as freedom from arbitrary government control,[35] the framers designed the Establishment Clause to protect religion from government—not vice versa. Rule 1 is the kind of governmental control over religion that the framers were concerned about, and the Montana Supreme Court’s ruling swept that concern under the shameful rug of post-Blaine anti-Catholicism.
The Montana Supreme Court’s ruling also violates the Establishment Clause because its reasoning implies an establishment of religion where there is not one. By arguing that the effect of the program would be an establishment of religion, the Montana Supreme Court assumes that demographic facts imply governmental intent. But how does the fact that the majority of private schools in a particular state are religious mean that by providing a general scholarship program, the government is actively establishing a religion? The number of religious schools—and the corresponding potential impact of the funding program—is entirely a matter of demographic fact. Any argument that the government is using the funding program to establish religion is putting words in the mouth of the Montana legislature, particularly since there is no evidence that suggests the state implemented this program to help religious schools at the expense of non-religious schools.[36]
As it turns out, the Supreme Court already dealt with this logical fallacy in Zelman v. Simmons-Harris. In Zelman, a generally available scholarship program gave financial aid vouchers to Cleveland-area students to attend private schools, the vast majority of which happened to be religious.[37] A group of taxpayers claimed the program violated the Establishment Clause, but the Supreme Court held that it did not because it was a neutral and generally available program.[38] The fact that the majority of the schools in that area happened to be religious did not necessarily mean there was an Establishment Clause violation.[39] The same is true in Espinoza. The demographic realities of the State of Montana do not automatically imbue a generally available scholarship program with Establishment Clause concerns.
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Trinity Lutheran contains a footnote in which Chief Justice John Roberts noted that the case involved anti-religious discrimination “with respect to playground resurfacing” and did not address “religious uses of funding or other forms of discrimination.”[40] Montana and its supporters argue that this means that Trinity Lutheran’s holding should be confined to its facts.[41] But all legal analysis requires the application of general principles to new facts, and it is obvious that Trinity Lutheran was not about playground resurfacing—it was about whether a religious entity can be excluded from a generally available funding program because of its religion.[42] As Notre Dame law professor Rick Garnett puts it: “[t]he Institute for Justice and the National Education Association . . . filed amicus briefs; Goodyear and Playcore did not.”[43]
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Most law and religion scholars agree that Espinoza likely will prevail. Many (including the author) are also hopeful that the Supreme Court will put an end to the discriminatory Blaine amendments.[44] Either way, the Supreme Court should at least clarify that states cannot treat some private schools differently than others because they are religious.[45]
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[1] See Mont. Code Ann. § 15-30-3101.
[2] See, e.g., EdChoice, Tax-Credit Scholarship Programs, https://www.edchoice.org/school-choice/types-of-school-choice/tax-creditscholarship/ (listing all tax-credit scholarship programs).
[3] See Mont. Code Ann. § 15-30-3111.
[4] See Mont. Admin. R. 42.4.802 (changing the definition of “qualified education provider” to exclude any organization “owned or controlled in whole or in part by any church, religious sect, or denomination”).
[5] See Mont. Const. Art. X, § 6 (banning any “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”).
[6] See Mont. Code Ann. § 15-30-3102(7).
[7] See Espinoza v. Department of Revenue, 393 Mont. 446 (2018) (stating a violation of the Establishment Clause).
[8] See Kelsey Dallas, Should State Governments Help Fund Religious Schools?, Deseret News (Jan. 17, 2020). https://www.deseret.com/indepth/2020/1/17/21064491/should-state-governments-help-fund-religious-schools?fbclid=IwAR2zlDqunMzSZ1O_Hgt0WzxkeGtOCIqQ%E2%80%A6.
[9] See Pet’rs’ Br, at 16 (“Under this Court’s recent decision in Trinity Lutheran, applying article X, section 6(1) to exclude religious options in student-aid programs discriminates against the free exercise rights of both Petitioners and the religious schools they wish their children to attend.”).
[10] See Trinity Lutheran, 137 S. Ct. at 2020 (quoting Everson v. Board of Education, 330 U.S. 1, 16 (1947)) (emphasis in original).
[11] See James Madison, Memorial and Remonstrance Against Religious Assessments. § 8 (1785).
[12] See Locke v. Davey, 124 S. Ct. 1307, 1311 (2004) (holding that a state does not violate the Free Exercise Clause when it refuses to let devotional theology majors use generally available funds that secular majors can use).
[13] Id. at 724.
[14] Id. at 720–21.
[15] See Pet’rs’ Br, at 23.
[16] See generally Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J. L. & Pub.Pol’y, 551, 565-66 (2003).
[17] See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2037 n.10 (2017) (Sotomayor, J., dissenting) (listing all thirty-eight state Blaine amendments).
[18] See Mitchell v. Helms, 530 U.S. 793, 828-29 (2000). This anti-Catholic animus pervaded the U.S. Supreme Court as well. In Board of Education of Central School District No. 1 v. Allen, Justice Hugo Black referred to Catholics as “powerful sectarian religious propagandists” and to their religious views as “prejudices.” See Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 251 (1968) (Black, J., dissenting)
[19] See Am. Legion v. Am. Humanist Ass’n, 139 S.Ct. 2067, 2097, n.3 (2019)
[20] See Pet’rs’ Br, at 35–44.
[21] The principal of the Helena, Montana high school called the Catholic church “the greatest foe of the public schools and the most formidable barrier to their success in this county.” See Officers Elected for the Ensuing Year–Concluding Proceedings, Helena Wkly. Herald, 4 (Jan. 5, 1888) https://chroniclingamerica.loc.gov/data/batches/mthi_leopardfrog_ver01/data/sn84036143/00295861368/1888010501/0010.pdf.
[22] Id. at 41.
[23] See Resp’ts Br, at 19.
[24] See Eric Rassbach, Symposium: Anti-Catholic Blaine Amendments like Montana’s are presumptively Unconstitutional, SCOTUSblog (Sept. 19, 2019), https://www.scotusblog.com/2019/09/symposium-anti-catholic-blaine-amendments-like-montanas-are-presumptively-unconstitutional/ (“Pretending that the Blaine Amendments were not deeply rooted in the widespread and fervent anti-Catholic prejudice of the day would be like pretending that Jim Crow laws randomly arose in the post-Construction South.”).
[25] See 1971–1972 Montana Constitutional Convention Tr. Vol. VI, 2010.
[26] See Pet’rs’ Reply Br, at 19 (noting that “between excising this badge of bigotry and passing the new constitution, the Delegates concluded it was more important to do the latter”).
[27] See Amicus Brief of The Beckett Fund for Religious Liberty, at 19–20 (“The Montana Blaine Amendment still carries the signature language of a Blaine, it still carries with it the anti-Catholic history, and it continues to exclude the same targeted group from access to public benefits.”).
[28] See Amicus Brief of The Beckett Fund for Religious Liberty, at 16 (“Enforcing Blaine Amendments reanimates the dead hand of historical discrimination to punish religious people today.”).
[29] See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017).
[30] Id. (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533, 542 (1993). It is telling that the Montana Supreme Court’s opinion completely failed to mention Trinity Lutheran. The lower courts have already recognized that Blaine amendments cannot stand under Trinity Lutheran. For instance, the New Mexico Supreme Court held in Moses v. Ruszkowski that the New Mexico Blaine amendment could not be used to invalidate a textbook-lending program that was available to all citizens regardless of religion. See Moses v. Skandera, 367 P.3d 838 (N.M. 2015).
[31] See Resp’t Br, at 7 (“By striking down the statute in its entirety, it also ensured that no one is penalized for exercising their faith.”).
[32] See Pet’rs’ Reply Br, at 4 (citing Griffin v. County Sch. Bd., 377 U.S. 218, 225 (1964)).
[33] Id. at 14 (noting that “applying Montana’s Blaine Amendment in this way extends the provision’s original prejudice against Catholics and Catholic schooling to all religions and religious schooling”).
[34] See Amicus Brief of The Beckett Fund for Religious Liberty, at 32–33 (“The Montana Supreme Court’s ‘leveling down’ is particularly egregious . . . [because it] extended the religious discrimination even more broadly by striking the tax credit program as applied to donations to religious and secular schools. An injury is not remedied by distributing its pain more broadly.”).
[35] See John Locke, An Essay Concerning the Original Extent and End of Civil Government, § 141 (1689).
[36] Allowing religious schools to participate in the program may not be what some view as a preferable social result, but the way to change that is to reduce the number of religious schools in the State of Montana, not to rely on a bigoted Blaine amendment to characterize a general funding program as an establishment of religion. And it probably goes without saying that governmentally reducing the number of religious schools in Montana would raise some rather serious Establishment Clause concerns itself.
[37] See Zelman v. Simmons-Harris, 536 U.S. 639, 646–47 (2002).
[38] Id. at 662–63.
[39] Id. at 656–58.
[40] See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 n.3 (2017).
[41] See Frank Ravitch, Symposium: Espinoza v. Montana Department of Revenue: The Battle Between May Fund and Must Fund, SCOTUSblog (Sept. 18, 2019), https://www.scotusblog.com/2019/09/symposium-espinoza-v-montana-department-of-revenue-the-battle-between-may-fund-and-must-fund/.
[42] Id.
[43] Id.
[44] See Dallas, supra note 8.
[45] See Douglas Laycock, Churches, Playgrounds, Government Dollars – And Schools, 131 Harv. L. Rev. 133, 141 (2017) (noting that “if there is no Establishment Clause obstacle to neutrally delivered aid, and if the Free Exercise Clause is now understood as principally a prohibition on discriminating against religion, then it seems to follow that the Constitution prohibits overt discrimination against churches in otherwise neutral and secular funding programs”).