By Katherine Johnson
After a few recent disappointing decisions, the Supreme Court delivered a win today for religious liberty, religious schools, and citizens' religious exercise in Espinoza v. Montana. The state's Department of Revenue had barred students from using scholarship credits towards religious schools (but permitting them to go towards secular schools), even though the students were otherwise qualified for the scholarship. Montana made the choice clear: in order to be eligible for government aid, a school must divorce itself from any religious affiliation.
The Court today ruled that this policy infringed on how Montanans exercised their religion, and thus violated the First Amendment. More broadly, we are confident that the case sounded the death knell for Blaine Amendments, which are state constitutional provisions that prevent any public aid from being distributed to any schools with a religious affiliation.
After today's opinion, the ability to prohibit religious adherents from participating in something generally available to the public has been dealt a serious blow. The court in Trinity Lutheran Church v. Comer had ruled on religious discrimination in public programs, but not all of them. Such religious discrimination had remained widespread. Thirty-eight states have Blaine amendments that prevent religious parents and students from using tax credits to sectarian schools. Now they should be finished. While he joined the majority, Justice Alito also wrote a strong concurrence highlighting the anti-Catholic bigotry and history of Blaine amendments. It was past time to remove them from our nation, he observed.
In the majority opinion, the Supreme Court noted the injustice of only allowing students who would use the tax credits towards secular schools to participate in the scholarship programs. This choice forces students to choose between their faith and educational opportunities. Today, with the Supreme Court's holding, people of faith will no longer have to choose between their faith and education. Montana's Blaine amendment violated the Free Exercise Clause of the Constitution because it discriminated against religious schools and their families, by restricting their ability to live out their faith. Noting that religious schools were barred from public benefits solely because of the religious character of the schools, the court found that Montana treated religious schools as second class citizens - which is unacceptable under the First Amendment.
Today, the Supreme Court once again made it clear that religious groups cannot be barred from participating in a widely available public program simply because of their religious identity. This has strong implications for religious organizations moving forward. The court clarified that if the government is going to create a public program, religious adherents cannot be discriminated against or left out because of their faith. The decision today should remind states that institute scholarship programs to make sure that religious adherents are not excluded. This will allow religious schools and organizations to participate freely in our society without having to disown their religious identity.
Katherine Beck Johnson is Research Fellow for Legal and Policy Studies at Family Research Council.
Published: June 30, 2020