Religious conservatives asked the Supreme Court Wednesday to overturn 38 state constitutional amendments and require taxpayers to fund religious schools.
You read that right. The case, Espinoza v. Montana Dept. of Revenue isn’t about whether a state may fund religious schools through a school choice, voucher, or similar program. It’s about whether it must.
And the conservatives might just win.
At issue in the case, probably the most significant church-state case on the 2019-20 docket, is Montana’s “no-aid” amendment to its state constitution, which was revised and passed in 1972. Like similar amendments in 37 other states, it prohibits “direct or indirect funding” for any “sectarian purpose.”
In 2015, the state legislature passed a law that gave a tax credit of up to $150 for donations to a school scholarship program. But in 2018, the Montana Supreme Court struck down the program, saying it violated the 1972 constitutional provision.[JM1]
That’s when a group of religious organizations upped the ante. They went to the Supreme Court, seeking not just to reinstate the program but to toss out the “no-aid” amendment entirely – and, as a consequence, invalidate 37 similar amendments across the country.
That would open the floodgates to the funding of religious schools, especially since the plaintiffs argue that not funding them—previously the constitutional norm—is actually a form of discrimination.
As in many of these cases, how Espinoza looks depends on how you frame it.
For conservatives, this is discrimination. If I want to send my child to a secular private school, I can receive funding (or a voucher, or a scholarship, or whatever). But if I want to send her to a religious one, I can’t.
Moreover, the religious groups accurately note, “no-aid” amendments were originally passed in a wave of anti-Catholic, anti-immigrant animus in the 1870s and 1880s. They’re sometimes called “Blaine Amendments,” after Rep. James Blaine, a leading Republican[JM2] of his day who proposed a federal constitutional amendment banning such funding. That effort failed, but numerous “Baby Blaine” amendments passed on the state level.
Today, they may seem like liberal walls between church and state. But 150 years ago, they were motivated by anti-Italian, anti-Irish, and overall anti-Catholic prejudice. (Even the word “sectarian” as opposed to “religious” was code for Catholic.)
For liberals, however, public funding of religious schools is blatantly unconstitutional.
Randi Weingarten, president of the American Federation of Teachers, said on a press call prior to the case that “it’s a total and utter perversion of the Constitution… to mandate support for a particular religion.”
The justices seemed divided at oral argument.
Justice Stephen Breyer seemed concerned that if the plaintiffs win here, states would have to radically restructure how they fund education. After all, isn’t it discrimination to fund public, secular schools more than private religious ones?
(Incidentally, RBG fans can take heart: Justice Ruth Bader Ginsberg was as lively and combative as ever, and focused on whether the Court should even be hearing the state constitutional challenge in the first place.)
But Justices Brett Kavanaugh, Samuel Alito, and Neil Gorsuch suggested that ruling for the plaintiffs wouldn’t represent such a radical change. Even if the no-aid amendments are wiped out, states would still be free not to fund private education in general. It’s only when states choose to fund some private education that they must make funding available to both religious and secular institutions.
Oddly, the practical result of that position isn’t very different from that of the Montana supreme court, which tossed out the program in toto. Except that the conservative justices’ position might well overturn 37 state constitutional amendments in the process.
Chief Justice John Roberts, working on very few hours’ sleep after presiding at the impeachment trial of the president, said a bit less than usual, though he did crack two jokes. But if the case splits on ideological lines, Roberts will again find himself as the deciding vote.
Which way will he go? Recent cases, including the 2017 case of Trinity Lutheran Church v. Comer, suggest he may favor the religious plaintiffs.
In Trinity Lutheran, Roberts was able to win over Justices Elana Kagan and Breyer, and the Court voted 7-2 to uphold a program that made state money available to private schools – religious and secular – for playground renovations. Chief Justice Roberts wrote the opinion narrowly, but his language still made clear that he views these cases as about discrimination against religious people, rather than public funding of religious organizations.
The First Amendment, he wrote, allows a state “to extend that public benefit to all its citizens regardless of their religious belief.” And denying funds to the religiously-affiliated school “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”
That would suggest a ruling for Espinoza and the other religious plaintiffs here. If this case is about discrimination, the plaintiffs win.
The trouble with this supposedly “moderate” result is that Montana’s program is actually more modest than many of the “school choice” programs promoted by, among others, Education Secretary Betsy DeVos and her family’s multi-million-dollar foundations.
Montana, after all, only offered a $150 tax credit for donors to an overall pool of money. (Indeed, it seems designed to gradually push the boundaries of constitutional law.) What about states that would grant a dollar-for-dollar tax credit up to the total amount of a private school tuition?
For example, full-price tuition at one of the Montana religious schools in the case runs between $6,900 and $8,700. That’s far more than most people pay in state taxes.
So if Montana’s more modest program is reinstated and the no-aid amendments are struck down, other, less modest programs could easily be put into place. The result could be a massive shift in revenue from state coffers to the bank accounts of religious schools.
That would, of course, please DeVos and other religious conservatives, but it would also starve public education.
Moreover, while the Blaine Amendment was indeed motivated by discriminatory animus, Montana’s own “no-aid” amendment was passed in 1972 when the constitution as a whole was rewritten. In its filings with the Supreme Court, the state quoted several participants from those debates; they denied that any anti-religious animus was at play, and, on the contrary, noted that many religious leaders wanted the amendment in order to keep government out of religious schools’ business.
That revised constitution passed 80-17.
Finally, religious conservatives’ argument in Espinoza flies in the face of conservatives’ usual promotion of federalism and states’ rights. When states seek to restrict voting access, allow discrimination against LGBT people, or ban abortion, “states’ rights” is a right-wing rallying cry. But now, when 37 states prohibit taxpayer dollars from flowing to religious institutions, suddenly it’s not that important.
In a way, the Espinoza case is an apt reflection of how religious conservatives (including many extremists) have benefited from their support of Trump. Most eyes are focused on Chief Justice Roberts’s other job of the moment, with its high drama and political machinations. But while Trump’s antics deservedly get the spotlight, just out of view are a group of well-funded religious conservatives who are totally remaking church and state in America.
They most likely scored another victory today.