Supreme Court to Tackle Anti-Catholic Blaine Amendment

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Kendra Espinoza is a single mother in Montana. She didn't like the environment the public school system offered her two daughters. Espinoza wanted them in a private Christian school; to pay the tuition, she took a second job cleaning houses and she got some needed public assistance in the form of a scholarship program.

The state of Montana enacted Student Scholarship Programs in 2015, which helped parents who sent their children to private schools — both secular and religious — by allowing taxpayers to redirect up to $150 of their state taxes to the program.

Espinoza's daughters thrived in their new environment. But last year, the Montana Department of Revenue enacted a rule that would prevent any of the scholarships from the program being used at religious schools. Espinoza and two other families filed a lawsuit. The Montana Supreme Court addressed that by simply abolishing the entire program.

Now the case of Espinoza v. Montana Department of Revenue is coming to the United States Supreme Court in the coming term. Both sides have girded for battle with the potential for a sweeping ruling that could drastically alter the legal landscape that private schools in general — and religious schools in particular — have to face. Here's a rundown of the key legal issues on the table in Espinoza.

Blaine Amendment Backdrop

Rooted in 19th-century know-nothingism and anti-Catholic immigrant sentiment, the Blaine amendments strictly forbid government money going to "sectarian" schools. The amendments are named after Congressman James Blaine, a Republican from Maine, who sought to have it become a part of the U.S. Constitution. When that effort narrowly failed, he and his supporters shifted their focus to state constitutions.

Thirty-seven states would adopt Blaine Amendment language into their constitutions. Montana was one of them. And it was the Blaine Amendment that officials at the Montana Department of Revenue cited when they first issued their rule that closed the schoolhouse door to Kendra Espinoza's daughters.

The Becket Fund for Religious Liberty filed a friend-of-the-court brief in support of Espinoza and seeks to have the Blaine amendments struck down nationwide.

"Blaine Amendments … have stained the lawbooks for far too long," said Eric Rassbach, vice-president and senior counsel at Becket. "The Supreme Court should right this historical wrong."

Recent Precedents

In 2002, the U.S. Supreme Court upheld a school choice program in Cleveland. For that reason, Court-watchers — including those who support the state of Montana — expect Espinoza to win her case.

The 2002 Zelman v. Simmons-Harris case said that as long as the government program itself was neutral and the decision to direct dollars toward a religious school made solely by the beneficiary, then the program did not run afoul of the Constitution's establishment clause.

Then two years ago in Trinity Lutheran v. Comer, the Court ruled that the state of Missouri could not deny a Lutheran school access to grant money to resurface its playgrounds. As a direct result of that decision, the state Supreme Court in New Mexico had to reverse a previous ruling and allow religious schools to participate in a state-run textbook lending program — all of which served to strengthen the principle of equal footing for religious schools in government programs.

States' Rights

The Montana chapter of the American Civil Liberties Union (ACLU) filed a friend-of-the-court brief on behalf of the state. Daniel Mach, the director of the ACLU's Program on Freedom of Religion and Belief, makes the case that by eliminating the entire scholarship program — including for secular private schools — the state is no longer discriminating against religious families. They simply do not have a program for private school scholarships.

Given this, Mach argues that if the Court rules in favor of Espinoza, it would be going further than simply granting religious schools equal access. Such a decision, the Montana ACLU believes, would virtually mandate that all state governments finance private schools.

Mach points to the case of Locke v. Davey, a 2004 case that ruled it was permissible for the state of Washington to bar a public scholarship program from being used by a student who wanted to pursue theology training as providing the precedent for ruling in favor of Montana this time around.

The late William Rehnquist, a noted judicial conservative, authored the majority opinion in Locke. It's possible that five judges who comprise the Court's conservative majority may interpret conservatism as favoring the principle of subsidiarity — states' rights in this case — and rule in favor of Montana.

The Public School Monopoly

Catholics who understand the principle of subsidiarity would no doubt go one level deeper though and point out that it is the family — not the government at any level — which holds primary duty and right in the education of their children. This is a right that, according to the Church's Compendium of Social Doctrine, "the state cannot annul but which it must respect and promote."

This brings us to the issue that ultimately underlies all these debates, both in the courtroom and on the campaign trail — should the public school system have a complete monopoly on government money for education? Have they done an adequate job of "promoting" the family's rights in the education of their children, specifically the rights of economically marginalized religious families who don't have the resources to afford private schools under the current system?

Alice O'Brien of the National Education Association argues that the public school system deserves "due deference."

Jim Kelly, the president of the Solidarity Center for Law and Justice, argues otherwise and notes that "Montana public school officials have determined that … they will teach students mental and behavioral health and social and emotional thoughts, beliefs, attitudes and practices consistent with a religious naturalism."

Kelly hopes the Court will take a look at this "unique, but critical aspect" of the Espinoza case and end the public school monopoly.

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