The Supreme Court Rules Against Religious Discrimination, Opens Opportunity

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The U.S. Supreme Court’s ruling on Espinoza v. Montana Department of Revenue was obvious:

Montana’s [tax credit scholarship school choice] program, perhaps the smallest in the country, was enacted in 2015 and served about 40 students with an average scholarship of $500. Students were allowed to enroll in any private school in the state, religious or secular. As nearly 70% of the state’s private schools are religious schools, the majority of students used their scholarships to enroll in religious schools. In fact, nine of the 10 schools listed as “formally affiliated” with the scholarship are faith-based.

But the state’s Constitution includes language that bars public funding from flowing to religious institutions, either directly or indirectly. And because of that language, known as a Blaine amendment, the Montana Supreme Court in 2018 ruled the entire tax credit scholarship program unconstitutional, rendering it inoperable.

A cartoon from the time that Blaine amendments were working their way across the country shows the explicit anti-Catholicism behind them:

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“Separation of church and state” is a useful, catchy phrase, but it’s not quite an accurate reflection of the U.S. Constitution.  The government cannot discriminate on the basis of religion.  So, if a program funds private schools, it cannot exclude those that have a religious foundation.  That might make sense under a doctrine of “separation,” but separation can easily be recast as discrimination.

The Supreme Court’s ruling is especially timely right now, as advocates, including the RI Center for Freedom & Prosperity, begin calling for the use of COVID-19 funds to help support educational freedom to help students “catch-up” or otherwise overcome the increased challenges of the pandemic and our society’s reaction to it.



  • Joe Smith

    The recent Morrissey-Berru and Biel case as well will likely show Roberts is now both the Chief Justice and the chief “decider” of how the court will find the balance on government and religious educational relationship.

    This decision though is a baby step toward undoing Locke, assuming the court doesn’t substantially change (ie. Trump wins and RBG doesn’t make it another 4 years) – assuming Thomas can hold out 8 years the likely vacancy is RGB and then Breyer.

    Or course, what Robertsfaces is the continuing failure of Congress to resolve the inherent contradictions in labor law precedents against the growing discrimination law ones (Bostock being the most recent). It will be increasingly difficult to carve out these yes, but or no, but rulings.

    I’d be careful if I were a private religious school thinking the way to solve the declining enrollment and funding issues are through pubic subsidies – might open you up to more scrutiny than you want – but we’ll see how the current Morrissey-Berru / Biel case falls.

    The Espinoza ruling though is interesting in whether a religious organization could challenge RI charter law that expressly forbids a religious non-profit from establishing a charter – opens up a grey area there. Of course the charter school itself couldn’t openly teach a religion, but the religious organization could use the surplus (one need only look at how AF or BVP has made a handsome margin) to help its other religious schools.