Fresh off upholding the Bladensburg Cross, the Supreme Court has taken another case with even more at stake for religious liberty. On Friday the Justices agreed to hear a challenge that involves Montana’s Blaine Amendment, a constitutional provision that bars tax-credit scholarships from going to religious schools.
In 2015 lawmakers in Helena passed Montana’s first school-choice program. Students wanting to attend a private school could receive money from a nonprofit scholarship fund. Donors contributing to such funds, in turn, could get a state tax credit of up to $150. More than a dozen states have implemented similar programs with wide success.
But Montana’s constitution includes a Blaine Amendment, a provision saying that no public dollars may flow, directly or indirectly, to any sectarian organization. In the late 19th century many states passed these amendments as a hostile response to Catholic immigrants. Montana’s dates to 1889.
The state’s Revenue Department, reading the Blaine Amendment, wrote a rule to bar religious schools from the new scholarships. Parents sued, and they initially succeeded. But in 2018 the state Supreme Court struck down the program. The state court said tax credits amounted to indirect public support for religious schools, violating the state constitution.
The questions for the U.S. Supreme Court are: If a state sets up a neutral program for student aid, can it block religious schools from participating? Or does this violate the First Amendment’s guarantee of religious liberty?
Two years ago in Trinity Lutheran v. Comer, the Justices held 7-2 that Missouri, another state whose constitution forbids sectarian funding, could not exclude a religious day-care program from public grants to pay for rubber playground surfacing. “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution,” Chief Justice John Roberts wrote for the majority.
That case did not address student aid, and lower courts have divided on the question. In Maine some towns that lack high schools instead contribute to families’ private tuition, though again religious options are disqualified. Last week a federal judge upheld that law, while saying his ruling was only a “rehearsal” for the appeals court.
The parents in the Montana case, who are represented by the Institute for Justice, say this lack of clarity means that each year “tens of thousands of children are denied educational opportunities.” By taking Espinoza v. Montana Department of Revenue, the Justices have shown an interest in resolving the ambiguity. The case is a chance to strike the anti-religious bigotry of Blaine Amendments from American law and further restore the original meaning of the First Amendment.
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Opinion: The Supreme Court’s Big Year Continues