WASHINGTON — Last month, he U.S. Supreme Court agreed to take up a case that could make religious schools more accessible for low-income students participating in state aid programs.

At issue is a restriction from the Montana Department of Revenue barring religious schools from the state’s 2015 tax credit scholarship program.

The Montana Constitution has a Blaine Amendment, which bars public dollars from going to a religious organization either directly or indirectly. The state’s Blaine Amendment was cited by the Montana Supreme Court in its 5-2 decision last year to invalidate the scholarship program.

The scholarship program, created by the Montana Legislature, gives a modest $150 tax credit to individuals and groups who make donations to scholarship organizations. Those donations fund scholarships for low-income families to send their children to private schools of their choice.

Michael Bindas, a senior attorney with the Institute for Justice that is representing the Montana parents in the case, told the Register how this Blaine Amendment restriction came about and what the implications of this case could be for the ability of parents to choose religious schools as part of similar school-choice programs.

“The Supreme Court with this case has the opportunity to remove the Blaine Amendments once and for all as barriers to school choice,” Bindas said. “If the court rules correctly and holds, as it should, that Blaine Amendments cannot be used to exclude religious options from student aid programs, then that would mean that the 30-some-odd states that have similar provisions to Montana’s would no longer be able to rely on those to deny religious options to students who feel those are best for them.”

 

Anti-Catholic Blaine Amendments

Bindas explained that Blaine Amendments date back to the 19th century, when “the public schools were much different from the public schools of today” and were “overtly religious.” Due to the Protestant makeup of the public schools at the time, schools read the King James Version of the Bible and recited Protestant prayers and hymns.

As more Catholics came to the U.S. in the mid-19th century, Bindas said, “Catholic parents started taking issue with the fact that their children were being forced to attend public schools and being subjected to this essentially Protestant instruction in the public schools.”

Catholics began establishing their own schools and “demanding a share of the public-school funds,” as they were forced to pay for the public-school system. Bindas said that “there was a huge backlash” against this, and so James Blaine, a 19th-century congressman from Maine, attempted a federal constitutional amendment to ban public-school funding from being used for “sectarian schools,” a term that was widely understood to be code for Catholic schools. That amendment failed, but 37 states adopted these provisions in their state constitutions, including Montana in 1889.

Due to the state’s Blaine Amendment, the Montana Supreme Court concluded last year that “the legislature’s enactment of the Tax Credit Program is facially unconstitutional and violates Montana’s constitutional guarantee to all Montanans that their government will not use state funds to aid religious schools.”

However, Bindas asserted that a state “cannot single out and exclude religious options from an otherwise generally available student aid program and that was exactly the effect of the Montana Supreme Court’s decision.”

He said that decision invalidated this program “simply because it included religious options and the Free Exercise Clause of the Constitution prohibits that; the federal constitution requires neutrality toward religion, and that means allowing religious and nonreligious options alike.”

Bindas also argued that the Blaine Amendment should not be invoked against school-choice programs because they “don’t fund religious schools; they fund families.”

“No money finds its way to any school, religious or nonreligious, but for the private choice of parents; and so, really, Blaine Amendments shouldn’t even be implicated in school-choice programs because school choice was not a concept when these provisions were adopted,” he emphasized.

“The Montana Supreme Court decision turned these engines of animus toward Catholics into engines of animus toward all religion,” he said. “These [amendments] were specifically directed at Catholics, but as a result of the Montana Supreme Court’s decision and the decisions of other states, it is all religion that is being targeted now and being denied these types of options.”

“We’re confident that the Supreme Court is going to hold that that type of discrimination is not permissible and that parents will in the not-too-distant future be free to choose the best educational options for their children,” he concluded.

 

Recent Precedent

Andrea Picciotti-Bayer, a legal adviser for The Catholic Association, told the Register that the Supreme Court’s decision to hear the Montana case “is an opportune chance for the court to invalidate state Blaine Amendments once and for all.”

“Montana law that forbids tax credits going to schools owned or operated by a ‘church, sect or denomination’ — Montana’s version of the anti-Catholic Blaine Amendment — should not strip parents of choice in education,” she said. “Much like the playground grant at issue in the Trinity Lutheran case, Montana’s Tax Credit Scholarship Program should be open to all.”

Two years ago, in Trinity Lutheran v. Comer, the Supreme Court found 7-2 that Missouri violated the Free Exercise Clause by denying a church’s participation in a state-run playground-improvement program. The court found that the policy “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”

“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 in that case.

The Department of Justice filed an amicus curiae brief in the Montana case last year in which it compared the case to the Trinity Lutheran case, arguing that, because Montana’s restriction “imposes a disability on students and parents based on their choice of a religious school, Montana must justify this denial with ‘a state interest of the highest order.’”

“Defendants have made no such showing here, where they simply point to their view that the state constitution requires the denial,” they wrote. “Defendants here offer essentially the same justification that the Supreme Court rejected in Trinity Lutheran — namely, a state’s ‘preference for skating as far as possible from religious establishment concerns.’”

 

NCEA Perspective

Presentation Sister Dale McDonald, the director of public policy and educational research at the National Catholic Educational Association, told the Register that the Montana case “relies heavily on the Trinity Lutheran v. Comer case that SCOTUS indicated was a ‘narrow’ decision.” She said that a key question was whether the ruling in the Trinity Lutheran case was “broad enough to include school tuition aid that is generally available to all parents.”

“Our hope is that the court will rule that anticipated tax revenue not realized because of tax credits to individuals or corporations cannot be considered state money and would not be aid to religious schools but to parents who may choose the school,” she said.

Sister Dale also pointed out that “tax-credit scholarship programs are available in many states that have found them not to be in violation of the separation clauses of their state constitutions because funding is not in their state treasury.”

She concluded that “if Espinoza is ruled favorably for [school] choice, it will help move the choice agenda.”

Lauretta Brown is the Register’s Washington-based staff writer.