Will the Washington Post laud John Roberts’ independence after today’s ruling in Espinoza v Montana Department of Revenue? Don’t hold your breath, but religious schools can breathe a little easier after this 5-4 decision. Once states set up scholarships for students, they cannot deny them on the basis that the money might go to religious schools chosen by the students or parents.
It’s yet another blow to the Blaine Amendments in several states:
Chief Justice John Roberts wrote for the court. He was joined by fellow conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. The court’s four Democratic appointees dissented.
Roberts wrote that a decision by the Montana Supreme Court to invalidate a scholarship program on the basis that it would provide funding to religious schools in addition to secular schools “bars religious schools from public benefits solely because of the religious character of the schools.” …
Shortly after the program was enacted, the Montana Department of Revenue put in place a rule that barred scholarship recipients from using funds from the program to pay for religious schools.
That rule was intended to comply with a provision of the Montana Constitution, which forbids “any direct or indirect appropriation or payment from any public fund or monies … for any sectarian purpose,” including “to aid any church, school, academy, seminary, college, university, or other literary or scientific institution.”
Similar prohibitions, known as Blaine Amendments, exist in the constitutions of 36 other states, and in many cases stemmed from anti-Catholic sentiments.
Interestingly, Roberts barely touches on the Blaine Amendments in his opinion, with only two brief references. Justice Samuel Alito argues much more specifically about the malevolent nature of Blaine Amendments:
Backers of the Blaine Amendment either held nativist views or capitalized on them. When Blaine introduced the amendment, The Nation reported that it was “a Constitutional amendment directed against the Catholics”—while surmising that Blaine, whose Presidential ambitions were known, sought “to use it in the campaign to catch antiCatholic votes.”7 The amendment had its intended galvanizing effect. “Its popularity was so great” that “even congressional Democrats,” who depended on Catholic votes, “were expected to support it,” and the congressional floor debates were rife with anti-Catholic sentiment, including “a tirade against Pope Pius IX.”8
Montana’s no-aid provision was the result of this same prejudice. When Congress allowed Montana into the Union in 1889, it still included prominent supporters of the failed Blaine Amendment. See Sen. Daines Brief 10–13. The Act enabling Montana to become a State required “[t]hat provision shall be made for the establishment and maintenance of systems of public schools . . . free from sectarian control.” Act of Feb. 22, 1889, §4, 25 Stat. 677; see also Becket Fund Brief 17–18 (quoting one Senator’s description of the Act as “‘completing the unfinished work of the failed Blaine Amendment’”). Montana thereafter adopted its constitutional rule against public funding for any school “controlled” by a “sect.” Mont. Const., Art. XI, §8 (1889). There appears to have been no doubt which schools that meant. As petitioners show, Montana’s religious schools—and its private schools in general—were predominantly Catholic, see Brief for Petitioners 42, and n. 41, and anti-Catholicism was alive in Montana too. See, e.g., Sen. Daines Brief 1–3 (describing a riot over an anti-Catholic sign hung over a Butte saloon on Independence Day, 1894).
Respondents argue that Montana’s no-aid provision merely reflects a state interest in “preserv[ing] funding for public schools,” Brief for Respondents 7, known as “common schools” during the Blaine era. Yet just as one cannot separate the Blaine Amendment from its context, “[o]ne cannot separate the founding of the American common school and the strong nativist movement.”
Clearly, Montana was arguing a losing cause when defending its Blaine Amendment in Espinoza. Interestingly, and tellingly, not one mention of Blaine appears in any of the dissents in Espinoza.
Roberts for his part mostly relies on Trinity Lutheran to slap down the disparate treatment of aid and its indirect character. The lower courts erred in not applying strict scrutiny to this government intervention, Roberts writes, and uses the dissents to dissect that problem:
The simplest response is that these dissents follow from prior separate writings, not from the Court’s decision in Trinity Lutheran or the decades of precedent on which it relied. These precedents have “repeatedly confirmed” the straightforward rule that we apply today: When otherwise eligible recipients are disqualified from a public benefit “solely because of their religious character,” we must apply strict scrutiny. Trinity Lutheran, 582 U. S., at ___–___ (slip op., at 6–10). This rule against express religious discrimination is no “doctrinal innovation.” Post, at 13 (opinion of BREYER, J.). Far from it. As Trinity Lutheran explained, the rule is “unremarkable in light of our prior decisions.” 582 U. S., at ___ (slip op., at 10).
For innovation, one must look to the dissents. Their “room[y]” or “flexible” approaches to discrimination against religious organizations and observers would mark a significant departure from our free exercise precedents. The protections of the Free Exercise Clause do not depend on a “judgment-by-judgment analysis” regarding whether discrimination against religious adherents would somehow serve ill-defined interests.
Because the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school, the “strictest scrutiny” is required. Supra, at 9, 12 (quoting Trinity Lutheran, 582 U. S., at ___ (slip op., at 11)). That “stringent standard,” id., at ___ (slip op., at 14), is not “watered down but really means what it says,” Lukumi, 508 U. S., at 546 (internal quotation marks and alterations omitted). To satisfy it, government action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” Ibid. (quoting McDaniel, 435 U. S., at 628).
The Montana Supreme Court asserted that the no-aid provision serves Montana’s interest in separating church and State “more fiercely” than the Federal Constitution. 393 Mont., at 467, 435 P. 3d, at 614. But “that interest cannot qualify as compelling” in the face of the infringement of free exercise here. Trinity Lutheran, 582 U. S., at ___ (slip op., at 14). A State’s interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.” Ibid. (quoting Widmar v. Vincent, 454 U. S. 263, 276 (1981)).
In fact, Roberts writes, the issue at hand in Espinoza is far worse of an infringement than in Trinity Lutheran:
The Department’s argument is especially unconvincing because the infringement of religious liberty here broadly affects both religious schools and adherents. Montana’s noaid provision imposes a categorical ban—“broadly and strictly” prohibiting “any type of aid” to religious schools. 393 Mont., at 462–463, 435 P. 3d, at 611. This prohibition is far more sweeping than the policy in Trinity Lutheran, which barred churches from one narrow program for playground resurfacing—causing “in all likelihood” only “a few extra scraped knees.” 582 U. S., at ___ (slip op., at 15).
And the prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them. Drawing on “enduring American tradition,” we have long recognized the rights of parents to direct “the religious upbringing” of their children. Wisconsin v. Yoder, 406 U. S. 205, 213–214, 232 (1972). Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. See Pierce v. Society of Sisters, 268 U. S. 510, 534–535 (1925). But the no-aid provision penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.
That’s a pretty strong defense for religious liberty from Roberts, who isn’t exactly endearing himself to conservatives these days otherwise. But did it go far enough? Justice Neil Gorsuch wanted Roberts to rule more broadly on that issue, as Gabriel Malor notes:
Here’s Gorsuch’s conclusion, which criticizes Montana’s Supreme Court for suggesting that you can have school choice, as long as that choice isn’t for a religious school: pic.twitter.com/Cvynwra3G6
— Gabriel Malor (@gabrielmalor) June 30, 2020
Gorsuch wanted a recognition that there is no constitutional difference between status and use, because the First Amendment protects the freedom of religious expression, and not just “holding beliefs inwardly and secretly.” That would have created a precedent that would have extended into areas raised by the Obergefell decision on public accommodations, which the court has heretofore addressed in a more piecemeal fashion.
Still, it’s a big step forward for defeating the Blaine Amendments that still remain in several state constitutions. Justice Ruth Bader Ginsburg, in the main dissent, said the court should have just ordered a dog-in-the-manger strategy instead, again via Gabriel:
Justice Ginsburg in dissent buys into the Montana Supreme Court’s too-clever solution: just invalidate all the scholarships, not just the religious scholarships. Therefore, there can be no discrimination.
Not a strong advocate for school choice here. pic.twitter.com/pwe6MNyA66
— Gabriel Malor (@gabrielmalor) June 30, 2020
Fair enough, but as Gabriel points out, that would put an end to all school-choice programs involving scholarship monies. Is the need to maintain the Blaine Amendments — which Bader Ginsburg pointedly avoids — really so compelling as to foreclose any such innovations on the off chance that those funds might go to a non-secular school? If Bader Ginsburg thinks that, then she should run for public office.
This might restore a little respect for Roberts in the wake of June Medical on the Right. Don’t expect the WaPo to keep singing Roberts’ praise for long after Espinoza, though.