Espinoza v. Montana and the Blaine Amendments Against Religious Schools

A state offers a scholarship to every child, and a family may spend it at any private school that suits them. Then the state adds one sentence: except a school that is religious. If you read that sentence aloud to a visitor from another country, he will ask what the religious schools did to deserve it. And the honest answer, in a surprising number of American states, is that a nineteenth-century political movement decided they were a danger, and the sentence never left the books.

On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Supreme Court said the sentence was unconstitutional. This post explains why, what the history was, and why the ruling set up a sequel two years later.

Definitions first

Three terms will do most of the work.

• A no-aid provision is a clause in a state constitution forbidding public money to go to religious institutions, often phrased as a ban on aid to "sectarian" schools.
• A Blaine Amendment is the common name for such a provision, after James G. Blaine, a Republican congressman from Maine, who in 1875 proposed a federal constitutional amendment of the same kind.
• Status versus use. A rule that excludes a school because of what it is, a religious school, differs from a rule that says public money may not pay for what a program is used for, such as worship or religious instruction. This distinction decides the case.

The Montana program

In 2015, Montana's legislature created a modest tax-credit program. A taxpayer who donated to an approved scholarship organization could take a credit of up to $150 against state taxes. The organization would then give scholarships to families to send children to private schools. The program was designed to widen choices for families, especially those whose public school was not working for their child.

The legislature knew that the state constitution contained a no-aid provision, Article X, Section 6, which said that the legislature and other public bodies shall not make any direct or indirect appropriation or payment from any public fund or monies to aid any school controlled in whole or in part by any church, sect or denomination. So it wrote a safeguard into the statute: the program would be administered consistently with that provision.

Then the Montana Department of Revenue went further. It adopted what it called Rule 1, which said that the tax-credit scholarships could not be used at religious schools at all. The families who wanted to use them at a religiously affiliated school, among them Kendra Espinoza, who sent her daughters to Stillwater Christian School in Kalispell, sued. The Montana Supreme Court, in December 2018, ruled that the whole program violated the no-aid provision and struck it down for everyone. That meant that families who wanted a secular private school lost their scholarships too.

The holding

The Supreme Court decided the case five to four, and Chief Justice Roberts wrote the opinion. The question, as the Court framed it, was whether the Free Exercise Clause of the First Amendment barred the application of the Montana no-aid provision to exclude religious schools from the program.

The Court said yes, and it built its answer on two earlier cases.

Trinity Lutheran Church of Columbia, Inc. v. Comer (2017). Missouri had a program that reimbursed schools for resurfacing playgrounds with recycled tires. It excluded a church preschool, solely because it was a church. The Court held, seven to two, that excluding an otherwise eligible applicant from a public benefit because of its religious identity violates the Free Exercise Clause unless the government can show an interest of the highest order.

Locke v. Davey (2004). Washington State funded college scholarships but forbade using them for a degree in devotional theology. The Court upheld the exclusion, seven to two, because it was directed at a particular use of the money, training for the ministry, and because states had a long tradition of declining to fund ministers.

Roberts put the two together. Montana's rule excluded the schools because of their religious status, which was Trinity Lutheran, not because of a particular use of the aid. The state had not said "you may not spend this on worship." It said "you may not attend a school with a religious character at all." The Court held that a state need not subsidize private education, but once it does, it may not disqualify some private schools solely because they are religious.

Roberts also dealt with the state's argument that its no-aid provision was a long-standing tradition that deserved deference. The Court said the tradition was not deep. The no-aid provisions were mostly adopted in the second half of the nineteenth century, long after the Founding, and the Court held that a state's interest in separating church and state more strictly than the federal Constitution requires cannot justify denying a benefit because of religious status.

The history of the Blaine Amendments

This is where the story gets uncomfortable, and where I think conservatives have an honest reason to be interested in history.

Public schools in the nineteenth century were commonly Protestant in tone. Children read the King James Bible, prayed Protestant prayers and recited Protestant hymns. In the 1840s the Catholic bishops of the cities, notably in Philadelphia and New York, objected, and asked either for a change in the practice or for a share of public funds to run schools of their own. The reaction was fierce. In 1844, riots in Philadelphia over the use of the Bible in schools killed people and destroyed Catholic churches, a story told in Bible riots, Know-Nothings and the amendment named for James G. Blaine. The nativist political movement of the 1850s, the Know-Nothings, made opposition to Catholic influence in schools a plank.

By the 1870s the controversy had a national voice. President Grant, in a speech to a veterans' meeting in 1875, urged that public money be kept from sectarian schools. Soon afterward, James G. Blaine proposed his amendment in the House. It would have provided that no state shall make any law respecting an establishment of religion or prohibiting its free exercise, and that no money raised by taxation shall ever be under the control of any religious sect or applied to the support of sectarian schools. The House passed it by a vote of 180 to 7. In the Senate it fell short of the two-thirds required, by a narrow margin.

That should have been the end. It was not, because the idea moved to the states. Over the next decades state after state wrote the language into its own constitution. Congress even required it of new states: the enabling acts that admitted several western states in the late nineteenth century directed them to provide public schools "free from sectarian control." Montana's provision came into the picture that way. It was adopted in the 1880s and carried forward after the 1972 constitutional convention.

The word "sectarian" is the tell. In the 1870s it did not mean "religious" in the abstract. In the political language of the day it commonly meant Catholic, because the common schools were already "non-sectarian" in the sense of being broadly Protestant. Justice Alito, in a concurrence in Espinoza, discussed the anti-Catholic origins of the Blaine Amendments. That historical claim is supported by a respectable body of scholarship and is not, as far as I know, seriously disputed as to its origins in the 1870s, though how much of the later state-level enactment was driven by bigotry versus other motives is argued over by historians. Some defenders of the provisions point to taxpayer-conscience arguments that Jefferson and Madison made earlier. That is a fair point, and I will answer it below.

The majority, the concurrences, the dissents

Chief Justice Roberts's opinion was joined by Justices Thomas, Alito, Gorsuch and Kavanaugh. Several of them wrote separately.

• Justice Thomas, joined by Justice Gorsuch, wrote that the Establishment Clause should not be incorporated against the states and that the Free Exercise Clause was the proper ground, and he also argued that the Court should not treat the Blaine tradition as respectable.
• Justice Alito wrote at length on the history of the Blaine Amendment and on the discrimination against Catholics.
• Justice Gorsuch wrote that the status-use distinction was hard to draw and might prove unstable. That prediction deserves attention.

On the other side:

• Justice Ginsburg, joined by Justice Kagan, dissented on the ground that the Montana Supreme Court had struck the whole program, so no religious school was singled out any longer, and that the state court had decided on state-law grounds.
• Justice Breyer, joined by Justice Kagan in part, dissented on the ground that a state may favor a policy of avoiding entanglement of government and religion, and that Locke v. Davey left room for it.
• Justice Sotomayor dissented separately on the ground that the Court had no need to decide the question, because the Montana court had ended the program and left no one worse off than before.

Those are not frivolous arguments. The strongest one is Sotomayor's, a procedural point about whether the Court needed to rule. The answer is that the Montana Supreme Court struck the program because of the Free Exercise question: it held that the no-aid provision required it, and the U.S. Constitution forbids that application. A state court cannot shelter behind its own constitution when that provision, as applied, violates the federal one.

The steelman: why states have no-aid provisions

Let me take the other side's best case, in terms its defenders would accept.

The argument runs as follows. The principle that no taxpayer should be compelled to support a religion he disagrees with has deep roots. Jefferson wrote in his Virginia statute that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical. Madison's Memorial and Remonstrance said the same. A no-aid provision, on this view, honors that principle, and it protects religious schools too, by keeping government from regulating them in exchange for money. Many religious leaders over the years have worried that a flow of public money would bring public control.

That is a good argument. It deserves a respectful answer.

The answer in numbered points

1. The principle is about compulsion, not about neutrality. Jefferson's objection was to taxing a person for the support of a church. A tax credit for voluntary donations to a scholarship fund taxes nobody for the support of anything. The parent chooses the school. The money follows the child. The state does not choose a church; the family chooses a school.
2. The Court did not require Montana to fund religion. It held that Montana may not exclude religious schools from a program it created. A state may decline to have a scholarship program at all. What it may not do is create a program open to private schools and then close the door at the church-affiliated ones because of their religious character. Neutrality means equal treatment, not a veto against believers.
3. The no-aid history is not a neutral inheritance. An amendment designed in the 1870s to keep money from Catholic schools is not a principled expression of Jeffersonian conscience. Whatever the motives of later adopters, a provision that traces its mainstream form to Blaine ought not to be given the dignity of a principled tradition. The state has the burden of explaining why it should be enforced against religious schools in 2020, and "this is how it was drafted in 1889" does not carry the burden.
4. The no-entanglement worry is answered by the structure. In a voucher or tax-credit design the school receives its funds as the result of private choices of parents. That was the holding of Zelman v. Simmons-Harris in 2002, where the Court, five to four, upheld Cleveland's voucher program, because the aid reached religious schools only through the independent decisions of parents.
5. Equality under the First Amendment. A family that chooses a religious school is exercising two freedoms, the parental right to direct a child's education recognized as far back as Pierce v. Society of Sisters in 1925, and free exercise. A government that makes the family pay a price for choosing the religious option has put a thumb on the scale.

I make no claim that this settles every school-funding question. Direct subsidies to churches for religious instruction raise real constitutional issues and different ones. The holding in Espinoza is narrow and, I think, correct.

What it set up: Carson v. Makin

Justice Gorsuch's worry about the status-use distinction was prophetic. In Carson v. Makin, decided June 21, 2022, the Court took on a Maine program under which towns without a public high school paid tuition at the private school of the parents' choice, as long as the school was "nonsectarian." Maine said it was excluding schools based on the use of the money, because sectarian schools teach religion. Chief Justice Roberts, writing for a six-to-three Court, said that the program was designed to allow the choice of any approved school, that excluding religious schools because of the religious instruction they provide was discrimination based on religious exercise, and that the status-use distinction did not save it. The idea that a state may not disfavor a school because it is religious covers both what it is and what it does.

I think that follows. The line between "who you are" and "what you do" is thin for a religious school, because the religion is what the school does. Once you recognize that a family has a right to choose a religious school in a neutral program, you have recognized the right to receive what the school offers.

The dissenters in Carson, Justices Breyer, Sotomayor and Kagan, raised again the worry that public money will end up paying for religious instruction. That worry has weight, but the answer remains the same: the money goes where parents send it.

Why this matters to a family

Consider a hypothetical family, labelled as such: parents in a mid-size Montana town whose child struggles in the local public school and thrives in a small Christian school across town. The tuition is out of reach. A scholarship program exists, funded by donors who got a tax credit, but the state has declared the child's school ineligible because it holds chapel on Wednesdays. The family does not ask the state to pay for chapel. It asks only to be treated like every other family choosing among private schools.

That is the whole case. It is a plain request for equal treatment, and the Constitution gave it to them.

For the wider question of school choice, our own pages explain the options. For a short overview of the constitutional text that frames the dispute, see Sixteen words on religion in the First Amendment, read phrase by phrase, and for how the Court has treated the neighboring question of church-and-state, Everson v. Board of Education, the school bus case that changed church and state.

The case in brief

1. In Espinoza v. Montana Department of Revenue (June 30, 2020) the Court held, five to four, that Montana could not exclude religious schools from a tax-credit scholarship program because they were religious.
2. The state's no-aid provision belongs to the family of Blaine Amendments, which grew out of the 1875 federal proposal that passed the House 180 to 7 and failed in the Senate, and which carried the language of "sectarian" schools into state constitutions.
3. The Court relied on Trinity Lutheran (2017) and distinguished Locke v. Davey (2004), treating exclusion based on religious status as discrimination that triggers the highest scrutiny.
4. The objection that taxpayers should not be compelled to support religion has deep roots, but a voluntary tax credit and parental choice compel no one.
5. Carson v. Makin (2022) followed, holding that a state cannot exclude schools from a neutral tuition program because of their religious use either.

What you can do: look up whether your state constitution has a no-aid provision by reading its education article on your legislature's website, and ask your state representative how it is applied to school-choice programs.