On Wednesday, the Supreme Court heard oral argument in what could be the most important education case and religious liberty case of the last twenty years. In Espinoza v. Montana Department of Revenue the court is called on to once again address the constitutionality of programs it last considered in 2002’s Zelman v. Simmons Harris.
In Zelman the Supreme Court ruled that publicly funded vouchers for private and religious schools did not violate the First Amendment’s Establishment Clause, appearing to clear the way for more educational options for students trapped in failing public schools. However, the road to school choice has often faced obstacles in state courts. Chief among those obstacles are so-called Blaine Amendments, provisions in 38 state constitutions forbidding public aid to sectarian institutions. In an attempt to bolster his presidential ambitions by appealing to anti-Catholic animus, Senator James Blaine of Maine proposed an amendment to the U.S. Constitution banning the use of tax money to support religious institutions or schools. When that effort failed in 1875, states took up the mantle, promiscuously adding them to their constitutions. The problem, however, for these amendments is that they may well violate the Free Exercise Clause of the First Amendment. The Supreme Court has long held that this clause forbids “laws that . . . impose disabilities on the basis of religion.” Distributing public money but singling out religious believers or institutions to not receive it quite obviously imposes religiously-based disability.
In December 2018, Montana officials successfully invoked that state’s Blaine Amendment to convince the state supreme court to strike down a tax-credit scholarship program. Created in 2015, the modest program allowed individuals and businesses to contribute up to $150 to nonprofit organizations providing scholarships for students to attend a “qualified education provider.” Initially, that included religious schools. However, the state Department of Revenue decided to exclude religious schools, citing the state’s Blaine Amendment. Three low-income mothers, including Kendra Espinoza, whose children received scholarships to attend a Christian school, sued. After winning at trial, the parents lost before the state Supreme Court, which declared that the entire program had to be struck down because the Department of Revenue did not have the authority to revise the law to exclude religious schools.
Oral argument revealed a closely divided court, with Chief Justice Roberts—or perhaps even Justice Breyer—likely to cast the decisive vote. Looming over the oral argument was the court’s 7-2 ruling in Trinity Lutheran v. Comer from 2017. In that case the court appeared to all but strike down Blaine Amendments when it said that excluding “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.” Without explicitly saying so, the majority’s reasoning seemed to make Blaine Amendments incompatible with the First Amendment. The dissenters, Justices Ginsberg and Sotomayor, did in fact say so, lamenting that the ruling “all but invalidated” them. In Espinoza the dissenters from Trinity Lutheran, along with Justices Breyer and Kagan, tried to distinguish the two cases, saying that Trinity Lutheran involved a grant program for resurfacing playgrounds, a “completely secular public benefit” in Justice Kagan’s words, not aid for religious education. That argument did not appear to have much traction with the conservative bloc of Roberts, Alito, Kavanaugh, Thomas, and Gorsuch. This line of questioning from Justice Kavanaugh toward Montana’s attorney captured that skepticism:
Justice Kavanaugh: Suppose — suppose the state said we’re going to allow the scholarship funds to be used for secular schools or Protestant schools but not for Jewish schools or Catholic schools. Unconstitutional?
Mr. Unikowsky: Yes, so I think that
Justice Kavanaugh: Is that a yes?
Mr. Unikowsky: Yes.
Justice Kavanugh: Okay. So what’s different when you say the scholarship funds can be used for secular schools but not for Protestant, Jewish, Catholic or other religious schools because of the religious status?
Mr. Unikowsky responded that the Establishment Clause would apparently allow it, claiming that under it they could deny the benefit to all religious groups. Government is just forbidden from picking and choosing among religious groups. Justice Kavanaugh then skeptically asked how that could be “consistent with Trinity Lutheran.”
In what looked like an act of desperation, Justices Ginsburg and Sotomayor tried a line of questioning attempting to show the plaintiffs did not have standing. Since the schools ended up receiving the scholarship money via the parents, weren’t they the true beneficiaries and therefore the proper plaintiffs? “Where is the harm” to your clients, Justice Ginsburg asked Richard Komer, the plaintiffs’ attorney? Komer pointed out that Zelman settled that question in 2002. The program is “aiding the parents” and therefore they are the ones being harmed. As well, under the Supreme Court’s extremely broad rules of standing, virtually any economic harm is sufficient to establish standing. This line of questioning was so strained one cannot help but think that it came from a position of weakness. Only if Chief Justice Roberts were looking for some way to avoid deciding the case would it have a chance of working. Roberts, however, would not seem inclined to reconsider Zelman’s reasoning.
Most interesting was a hypothetical question raised by Justice Breyer which also seemed designed to persuade Roberts to avoid a sweeping ruling. Breyer asked Jeffrey Wall, the U.S. deputy solicitor general who was arguing for the federal government in support of Espinoza, whether overturning the Montana Supreme Court would then require that the government fund religious education. After all, if the government is providing a public benefit by funding education, what would allow the government to limit that benefit to just public schools. “What’s the difference?” Breyer asked. This got Roberts’ attention. He later wondered if Breyer was correct that aid “would have to go to religious schools.” Perhaps troubled by that possibility, he said that there might be a difference “between general funding of the public schools and the decision to provide aid to private schools, except not religious schools.” Since Montana had struck down the entire program because of religious schools, Roberts seemed to think that you could limit the reach of the ruling. As if to reassure Roberts, Alito later said “nobody’s claiming the state has an obligation to make particular grants to religious institutions or to provide any funding for private education at all.” However, it was not clear from his reasoning why that would be the case.
A final, important line of questioning came from Justice Alito and seemed to gain some traction with Justice Breyer. Alito asked Unikowsky what the difference would be between the Montana Supreme Court’s decision and blatant racial discrimination. Imagine, he asked, if a state legislature set up a scholarship fund but, after a while, noticed that the scholarships “were mostly going to blacks” and decided that “we don’t like that and that’s contrary to state law.” Then the state supreme court strikes down the whole program, “Is that constitutional?” Mr. Unikowsky said that that racial analogy was not “apt.” But Roberts and Breyer were both dissatisfied with his response. Roberts could not see how race was “different than religion, which is also protected under the First Amendment.” Justice Breyer, picking up on Justice Alito’s point, said the scenario seemed similar to southern states that “shut down all the schools” to avoid desegregation after Brown v. Board of Education. Justice Alito then pressed Unikowsky, saying that his position implied that “it’s permissible to discriminate on the basis of religion” but that “it’s not permissible, ever, to discriminate on the basis of — of race.” Unikowsky argued that the Montana state constitutional provision had been enacted in 1972, not out of antireligious bigotry but partly at the behest of religious leaders who thought religious institutions would be stronger without government involvement, a position the lawyer traced back to James Madison. Justice Kavanaugh pointed out that that did not solve the problem of discrimination. Religious institutions were free to not participate in a neutral government program if they thought receiving aid would weaken them. Blaine Amendments force them to be excluded whether they want to be or not.
With the usual caveat that predicting the outcome of a decision based on oral argument is a dangerous business, there seem to be two potential outcomes in Espinoza. One would be the Chief Justice joining the four others in the conservative bloc to declare Montana’s Blaine Amendment unconstitutional. However, given his minimalist disposition, Roberts might work with Justice Breyer and perhaps Justice Kagan to craft a narrow ruling that would allow the court to avoid explicitly declaring Montana’s Blaine Amendment, and by implication all Blaine Amendments, unconstitutional. They might, for instance, convince other justices to vacate the Montana Supreme Court’s ruling and direct that court to reconsider the case under a proper interpretation of Trinity Lutheran. The difficulty with that option is that the Montana Supreme Court seems to have boxed in the Supreme Court. State supreme courts are the final interpreters of their own constitutions. Thus, their interpretation of their Blaine Amendment is final. It seems difficult to reconcile their interpretation of their own constitution with Trinity Lutheran. Even if the Roberts court were able to thread this needle, such a decision would force state courts to be careful when deploying their Blaine Amendments to exclude religious believers and institutions from public programs. It might not officially remove the amendments—but it could convert them into impotent vestiges nonetheless.
Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.