For more than a century, funding restrictions rooted in religious bigotry have found their way into the constitutions of 37 states. A case now before the Supreme Court should be an opportunity to evaluate the merits of letting those codes persist in the 21st century.
Espinoza vs. Montana Department of Revenue, which offered its oral arguments to the court this week, is a question of religious discrimination. In 2015, Montana established a taxpayer-funded scholarship program that aided parents in sending their kids to private school. The program applied to both secular and religious institutions until the state excluded parochial schools by pointing to its Blaine amendment — a constitutional provision that prohibits state funds from going to a religious establishment. The scholarship was later scrapped all together.
To some observers, it feels like the court was just here. In 2017, a 7-2 majority ruled in favor of a Trinity Lutheran preschool that was excluded from a Missouri-funded program to enhance the safety of school playgrounds.
That ruling, although narrowly constructed, was a victory for religious liberty advocates and suggested a decades-long frenzy to obliterate all semblance of state support for a religious function was approaching a dead end.
A few of the court’s conservative justices this week seemed to agree the Trinity decision applied to the case at hand. If a state chooses to “provide scholarships that are available to students who attend private schools,” Justice Samuel Alito argued, “they can’t discriminate against parents who want to send their children to schools that are affiliated in some way with a church.”
“It’s hard to see that that’s much different from Trinity Lutheran,” he added.
The parallels aren’t perfect, though, as Justice Elena Kagan pointed out. In the former case, the state was denying a neutral benefit on the basis of religious affiliation, whereas Montana’s program would have enabled religious education and activity.
Truly equitable treatment of secular and religious institutions shouldn’t be determined by prejudiced attitudes of a bygone era.
Regardless of the outcome, the matter should highlight the fact that Blaine amendments have brought two discrimination cases before the nation’s highest court in the past three years. Perhaps they don’t make things as clear as their supporters once argued.
Worse, still, is the bigotry behind their inception. By 1875, a Protestant majority was fearing the influence of a growing Catholic minority. When Catholics confronted ubiquitous Protestant practices in public schools, they were met with resistance and later formed their own religious schools.
In an effort to limit Catholic influence and curry the Protestant vote, Rep. James G. Blaine, R-Maine, introduced a constitutional amendment that would have prohibited government funds from supporting “sectarian” establishments. But, as as Justice Clarence Thomas once noted, “it was an open secret that ‘sectarian’ was code for ‘Catholic.’”
Although Blaine’s amendment failed, states began formalizing his wording as anti-Catholic sentiments spread. The question that ought to loom large in today’s milieu is whether states should continue supporting language that was born in politically motivated religious discrimination. Thirteen states apparently get along fine without a codified Blaine amendment. Why not join them?
The First Amendment naturally creates tensions that deserve debate in such diverse a country, but truly equitable treatment of secular and religious institutions shouldn’t be determined by prejudiced attitudes of a bygone era.