Kendra Espinoza worked two jobs to scrape enough money together to send her two daughters to Stillwater Christian School four years ago after they had problems in their public school. The Montana single mother was also counting on scholarship money from a program funded by donors who received a new state tax credit for giving to scholarships for private schools, both religious and secular. But the Montana Department of Revenue refused to allow any money from the program to go to students at faith-based schools. Espinoza and two other mothers sued the state, and the U.S. Supreme Court announced Friday it would hear their case.
The law Montana officials used to justify restricting the scholarship funds is known there and elsewhere as the Blaine Amendment, named after former Speaker of the U.S. House of Representatives James G. Blaine. Montana added such an amendment to its state constitution in 1889. Tim Keller, an attorney at the Institute for Justice, a nonprofit law firm representing Espinoza and the two other mothers, told me 37 states have passed their own version of the amendment. It was originally designed on the federal level to target Catholic schools and has become “a favored weapon of the opponents of school choice,” Keller said.
After Espinoza and the other families sued, the Montana Supreme Court not only ruled against them in a 5-2 decision but also found that the entire school choice program was unconstitutional and struck down the tax credits available to donors.
Keller said the Institute for Justice plans to argue before the U.S. Supreme Court that the school choice program didn’t aid schools—as is required to violate the Blaine Amendment—but rather helped individuals. That argument has worked in places like Wisconsin and Puerto Rico, he said.
But others want to go further. John Bursch, an attorney with the religious liberty law firm Alliance Defending Freedom, told me the court ought to strike down Blaine amendments altogether. ADF has filed a friend-of-the-court brief in the case.
“It makes more sense for a federal court to say, across the board, ‘We don’t tolerate this kind of religious animosity,’” Bursch said. “[Blaine amendments] should be burned and put on the scrapheap of history.” He referenced an example in Michigan, where the state forced private religious schools to complete mandated procedures like fire drills and background checks but could not fund them because of the state’s Blaine Amendment.
The U.S. Supreme Court ruled on a similar case in 2017, Trinity Lutheran Church of Columbia v. Comer, in which a Missouri Lutheran church tried to resurface its playground with recycled tire material through a state grant program. State officials rejected the school’s application because it was a religious organization. But the court found that denying the church’s request violated the Free Exercise Clause of the First Amendment to the U.S. Constitution. The decision prevented the imposition of “special disabilities on the basis of religious views or religious status.”
If the highest court in the land were to strike down Blaine amendments across the country, Bursch said, “it would open the door at the federal and state level for money to flow into private religious schools. It opens up the opportunity for religious schools to compete for government dollars on an equal footing with everyone else.”
Oral arguments in the Espinoza case won’t happen until at least the fall, and they will probably be closer to the end of the year, Keller said. A decision would most likely come in the spring of 2020. —Kyle Ziemnick