The decision is an important victory against government discrimination on the basis of religion.<\/b>
\nThis morning, the Supreme Court issued its decision in Espinoza v. Montana, striking down Montana’s state constitutional Blaine Amendment, which forbids state aid to \u00ab\u00a0any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.\u00a0\u00bb The decision overrules a Montana Supreme Court decision striking down a state school choice program that had provided tax credits on an equal basis to students attending both religious and secular private schools. The ruling is an important victory for religious freedom, specifically the principle that government policy should not discriminate between private organizations and citizens on the basis of religion.
The decision is a close 5-4 ruling, split along ideological lines with the five conservative justices in the majority, and the four liberals all dissenting. To my mind, that is unfortunate. Striking down blatant government discrimination on the basis of religion should not be so controversial and divisive.
While there are a number of complexities in the case, Chief Justice John Roberts’ majority opinion effectively captures the main issue:
The Blaine Amendment doesn’t exclude only those religious schools which fail to meet neutral educational standards, or have some other kind of flaw. They are barred from receiving state assistance for which similar secular institutions are eligible. That is clearly discrimination on the basis of religion, if anything is. The opinion goes on to explain that the Blaine Amendment cannot possibly survive strict scrutiny, as there is no narrowly tailored state interest that can justify a categorical ban on aid to religious schools, while simultaneously permitting aid to otherwise similar secular ones.
The dissenting justices argue that state governments must be free to discriminate against religious institutions in at least some instances, in order to avoid Establishment Clause programs. Here, for example, is a relevant passage from Justice Sotomayor’s dissent:
This is a longstanding argument offered by defenders of discriminatory exclusion of religious institutions from government education programs. But it is dangerously flawed. If there is a violation of the Establishment Clause or the Free Exercise Clause any time the state provides assistance that helps religious people engage in \u00ab\u00a0spiritual pursuits,\u00a0\u00bb then the same argument can be used to justify excluding religious institutions from virtually any government service or tax credit. If the government provides police and fire department protection to religious institutions on the same basis as secular ones, that facilitates worshippers’ \u00ab\u00a0spiritual pursuits\u00a0\u00bb and denies taxpayers \u00a0\u00bb the chance to decide for themselves whether and how to fund religion.\u00a0\u00bb The same point applies if the government gives tax exemptions to religious charities on the same basis as secular ones (as both the federal and state governments routinely do).
You don’t have to adopt many conservatives’ unduly narrow interpretation of the Establishment Clause (which they interpret as barring only the establishment of an official church or as directly coercing people to take part in its services) to recognize that nondiscrimination is not establishment. Even if government endorsement of religion also qualifies as an \u00ab\u00a0establishment,\u00a0\u00bb merely treating religious institutions the same as secular ones does not count as such an endorsement. For example, no one claims that the government endorses religion when it gives legal effect to religious wedding ceremonies on the same basis as purely secular ones.
There is an in-depth debate between the majority and the dissenters over whether Espinoza can be distinguished from the Court’s 2004 decision in Locke v. Davey, which upheld a state law denying scholarships to students pursuing degrees in \u00ab\u00a0devotional theology\u00a0\u00bb for the purpose of studying for the ministry. I think Roberts has the better of this debate, but I will not try to cover it in detail here. I would note, however, that there is an obvious difference between refusing to fund studies for a degree devoted to a specific subject matter, and categorically denying funding to all students attending religious institutions, even if they meet the curricular standards required for secular schools to be eligible for assistance.
Funding of education necessarily requires some criteria for determining which subjects have to be taught in order to qualify. Otherwise, the state would end up subsidizing attendance at institutions that only teach material that is completely irrelevant to the state’s educational objectives\u2014for example a school whose curriculum consists solely of training to repair obsolete typewriters. Imposing neutral curricular requirements in a scholarship program is different from categorically barring participation by religious schools, even if they cover the subjects required by the state just as well as secular ones do.
Two of the dissenters\u2014and many of Montana’s supporters in the legal academy\u2014argue that there is no actual discrimination on the basis of religion here, because the net effect of the Montana Supreme Court’s ruling enforcing the Blaine Amendment was to invalidate the entire school choice program, thereby denying aid to both religious and secular private schools. For example, Justice Ruth Bader Ginsburg argues that Montana simply \u00ab\u00a0put all private school parents in the same boat.\u00a0\u00bbRoberts has a good response to that point:
Imagine that a state legislature enacted a school choice program similar to Montana’s, and that the state supreme court then struck it down because it violated a provision in the state constitution barring state aid to racially integrated schools. The state could then argue there was no racial discrimination here, because the end result of the ruling was that students attending both segregated and integrated private schools are denied tax credits. Few would deny that the state government would be acting unconstitutionally in such a case, because the denial of tax credits was the result of a provision in state law that explicitly discriminates on the basis of race. The Montana Supreme Court ruling enforcing the Blaine Amendment in Espinoza qualifies as discrimination on the basis of religion, for exactly the same reason.
Montana remains free to deny state assistance to all private schools alike. But it cannot do so on the basis of a state law that requires discrimination on the basis of religion, and thereby leads to the invalidation of tax credit programs that do not themselves discriminate in this way.
Finally, it is worth mentioning the fact that Montana’s original Blaine Amendment was enacted in 1889, as part of a nationwide Blaine Amendment movement motivated by bigotry against Catholic immigrants. Justice Alito discusses the relevant history in some detail in his concurring opinion. Normally, this kind of bigoted motivation would be enough to strike down a government policy, even if it was ostensibly neutral on its face. Here, the issue of motivation is not crucial, because the Blaine Amendment does in fact discriminate on the basis of religion on its face. It explicitly discriminates against religious schools, relative to secular ones.
However, I also agree with the argument that the bigoted motivation behind the law provides an independent basis for striking down Blaine Amendments. If the enactment of a seemingly neutral law or policy is motivated by unconstitutional discrimination on the basis of religion (or some other forbidden criterion), it should be invalidated unless the government provides strong evidence that it would have enacted the same law or policy even in the absence of unconstitutional motives. I have defended this principle in other contexts, such as the Trump travel ban case, and it applies here too. It is unfortunate that both liberal and conservative justices seem to apply it inconsistently, depending on whose ox is being gored in the particular case at hand.
In the case of Montana, this is admittedly complicated by the fact that the Blaine Amendment was reenacted in 1972, as part of the process of drafting a new state constitution. The 1972 framers arguably did not have the same bigoted motives as those who enacted the 1889 version.
This raises the issue of whether the reenactment \u00ab\u00a0cleanses\u00a0\u00bb the taint created by the bigotry of the 1880s. I cannot fully do justice to this complicated issue in a blog post that is already too long. But I will say that such \u00ab\u00a0cleansing\u00a0\u00bb can only occur if the reasons for reenactment are not themselves tainted by unconstitutional motives. In this case, such a standard will be difficult to meet, because the Amendment discriminates on the basis of religion on its face. Thus, the motives for reenactment necessarily involve some form of discriminatory hostility towards religious institutions, even if no longer focused primarily on Catholics. In his opinion, Alito makes some additional points on why the 1972 reenactment remained tainted by unconstitutional motives. He also (correctly) points out that the reenactment issue does not arise in the case of the many states that still have Blaine Amendments dating back to the original 19th century Blaine movement, and not reenacted since.
Ultimately, the issue of motive isn’t crucial in this case. It is enough that the Montana provision discriminates against religious institutions on its face.
While I am happy about the result of this decision, I am troubled, though not surprised, by the 5-4 division along ideological lines, which replicates the one that happened in the 2018 travel ban case (with the exception of Justice Kennedy, who has since retired from the Court). The conservative justices who turned a blind eye to religious discrimination in the travel ban case consider it imperative to strike it down here. The liberal justices, for their part, have the opposite bias. That ideological division is likely to be replicated in commentators’ reactions to the ruling, as well. It is, I fear another example of how both liberals and conservatives are often inconsistent in their approach to issues of religious discrimination.<\/p>\n