"Born of Bigotry, Died in Religious Liberty: The Supreme Court Ends the Blaine Amendments in Empowering Parental Choice" by Charles J. Russo & William E. Thro

Born of Bigotry, Died in Religious Liberty:
The Supreme Court Ends the Blaine Amendments in Empowering Parental Choice

Charles J. Russo & William E. Thro

“The Blaine Amendment was ‘born of bigotry.”’¹

Reasonable people can certainly disagree over whether Chief Justice John Roberts’ forceful words in the opinion of the five-to-four judgement in Espinoza v. Montana Department of Taxation,² which produced seven different opinions,³ was the stake through the heart of the anti-Catholic Blaine Amendments that brought their jurisprudential reign of terror to a timely end. This much is clear, though: “[t]he no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause.”⁴ The upshot is that if the Blaine Amendments are still viable, which is a dubious proposition at best, they are on life support as the Court seeks to end discrimination toward faith-based institutions and people of faith in an ever religiously diversifying United States.⁵

The significance of Espinoza goes far beyond ending the longstanding form of legalized bigotry enshrined in Blaine-type language in state constitutions. Indeed, Espinoza is a major victory for both religious freedom and the rights of parents to choose where their children will be educated. In Espinoza, the Court essentially rejected the metaphor of the “wall of separation between church and state,” coined by Roger Williams in the 1640s⁶ but popularized by Thomas Jefferson in 1802,⁷ which is the view most often associated with its First Amendment Court’s jurisprudence for the better part of the past seventy-five years.⁸ Consequently, the Court no longer allows States to rely on either the Establishment Clause or Blaine-type language in their constitutions to treat religious institutions and people of faith differently from the general public.

Clearly, Espinoza is a victory for religious freedom because it prevents States, and public officials, from discriminating against religiously affiliated schools and people of faith.

Espinoza began when three mothers in Northwestern Montana sued their state Department of Taxation, challenging the exclusion of the Christian school their children attended from participating in a tax credit program even though it met the statutory criteria making it otherwise eligible to do so. Under the program, taxpayers were entitled to dollar-for-dollar tax credits for contributions of up to the modest amount of $150 per year they made to a Student Scholarship Organization. This program allowed parents to use their contributions to the tax replacement program towards their tuition payments, and parents could exercise their right to choose where their children would attend school.

In an unreported opinion, a state trial court in Montana granted the mothers’ request for summary judgment, essentially upholding the constitutionality of the program without the disputed rule which excluded faith-based schools from participating.⁹ However, relying largely on Blaine-type language in the state constitution, which bars state aid to sectarian schools,¹⁰ the Supreme Court of Montana reversed in favor of the state.¹¹

As aptly described in Justice Alto’s concurrence in Espinoza,¹² James K. Blaine of Maine, former Congressman, Senator, and unsuccessful Republican candidate for President, introduced a constitutional amendment intended to deny aid to schools “under the control of any religious sect,”¹³ blatant bigoted code for Roman Catholic schools. Blaine proposed this amendment after President Ulysses S. Grant’s final State of the Union address on December 7, 1875, in which he called for a constitutional amendment “forbidding the teaching [of religion in public schools] . . . and prohibiting the granting of any school funds, or school taxes or any part thereof, either by legislative, municipal, or other authority, for the benefit or in aid, directly or indirectly, of any religious sect or denomination. . . .”¹⁴

Near the end of his address, Grant declared that “[n]o sectarian tenets shall ever be taught in any school supported in whole or in part by the State, nation, or by the proceeds of any tax levied upon any community.”¹⁵ Although Congress rejected Blaine’s proposed amendment,¹⁶ as evidenced in Espinoza, Montana was one of the majority of States¹⁷ to have incorporated similar provisions in their constitutions.¹⁸

Espinoza is significant because it extends the protection of religious freedom and pluralism that the Supreme Court enunciated in Trinity Lutheran Church of Columbia v. Comer (Trinity Lutheran).¹⁹ Trinity Lutheran arose when officials of a faith-based preschool and daycare center applied to Missouri’s Department of Natural Resources, hoping to participate in its Scrap Tire Program to acquire material to better protect the children in its care by installing a new playground surface. The Program, which offered a limited number of reimbursement grants to reduce the volume of used tires in landfills and dump sites, provided funds to nonprofit organizations to acquire safe materials for playground surfaces made from recycled tires.

In Trinity Lutheran, the Court held that religious organizations must be full participants in American life. The Court determined that the Free Exercise Clause forbids states from singling out faith-based institutions and/or believers and denying them generally available benefits simply because they are religious. Chief Justice Roberts pithily stated that “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”²⁰ In a society where no faith commands a majority, Roberts acknowledged that while a significant number of people embrace no faith and a vocal minority is hostile to any faith, it is essential that the government not treat people of faith and their organizations as second class citizens.

In Espinoza, as in Trinity Lutheran, Chief Justice Roberts penned an opinion representing a significant victory for religious liberty. In the absence of a Federal Establishment Clause violation, Roberts framed the issue as whether Montana’s state constitution violates the Federal Free Exercise Clause.²¹ Answering in the affirmative, he invalidated “Montana’s no-aid provision [that] bars religious schools from public benefits solely because of the religious character of the schools.”²²

Writing for the Court, Roberts applied strict scrutiny, the most stringent form of constitutional analysis. When courts apply strict scrutiny, rather than the rational relations test,²³ the burden shifts to governmental officials to demonstrate that their actions are justified by compelling state interests that are applied in the most narrowly tailored means possible. As reflected in Espinoza, when courts apply strict scrutiny, governmental actions are likely to fail. Moreover, applying this balancing test means not only that restrictions must be narrowly drawn to avoid unnecessarily limiting rights, but also that in using this standard, underlying rights remain protected. Here, Roberts made it clear that excluding religious organizations from various public subsidies merely because they are religious must end.

In the Court’s analysis, the Chief Justice rebuffed Montana’s argument that it had an interest in separating church and state “more fiercely”²⁴ than called for in its Federal counterpart. Rejecting Montana’s Blaine-like Amendment, the Court replied that “[t]here is no compelling interest in separating church and state more than the federal Free Exercise Clause will allow,” reasoning that “Montana’s interest in public education cannot justify a no-aid provision that requires only religious private schools to ‘bear [its] weight.’”²⁵

Rounding out the judgment of the Court, Chief Justice Roberts emphasized an important point. According to the Chief Justice, “[a] State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”²⁶

Justice Thomas joined all parts of the Opinion of the Court but, joined by Justice Gorsuch, wrote “separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights.”²⁷ Justice Thomas made two broad points worthy of further reflection as the Court’s modern Establishment Clause Jurisprudence moves forward.

First, under the Supreme Court’s modern interpretation of the Establishment Clause, Justice Thomas pointed out that there is a constant tension between the Free Exercise rights of individuals and the Establishment Clause. Here, he recognized that governments, through their officials at all levels, frequently rely on the Establishment Clause as a purported justification for infringing on the free exercise rights of individuals and groups. For example, officials at public universities unsuccessfully argued that the Establishment Clause compelled them to deny access²⁸ or funding²⁹ to student religious groups while extending these benefits to secular groups.³⁰ In effect, the modern view of the Establishment Clause, as described by Thomas, diminishes the vitality of the Free Exercise rights³¹ such that it becomes the “lowest rung” on the constitutional ladder.³²

Second, Justice Thomas observed that the “modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect.”³³ As Justice Thomas noted on numerous occasions,³⁴ the original public meaning of the Establishment Clause was not to create an individual right but, rather, was intended to prevent the National Government from establishing a religion or interfering with the States’ efforts to maintain their own religion established at the state level.³⁵

Following Justice Thomas’ train of thought, even if the Establishment Clause creates an individual right that limits the States, “it would only protect against an ‘establishment’ of religion as understood at the founding, i.e., ‘coercion of religious orthodoxy and of financial support by force of law and threat of penalty.’”³⁶ In other words, Thomas believed that the judiciary should never rely on the Establishment Clause to reach such questions as whether a display of a creche was sufficiently secular³⁷ or whether a governing body could solemnize its meetings with a prayer.³⁸

Ultimately, Justice Thomas’ concurrence made three additional points in providing a path toward greater religious freedom, a reaffirmation of a foundational purpose of early American colonization, and, most significantly, a way to achieve what Inazu calls a “Confident Pluralism.”³⁹ First, Justice Thomas stands for the proposition that if the individual rights under the Establishment Clause are limited to avoiding coercion, the government will have no possible justification for treating people of faith worse than secular citizens.

Second, Justice Thomas advanced the proposition that it is important to recall that while America had multiple beginnings,⁴⁰ the desire to worship God as they saw fit was vital to the origin of Maryland, Rhode Island, and Utah.⁴¹ In fact, the Mayflower Compact among pilgrims fleeing religious persecution is a foundation of our constitutional order. Third, Justice Thomas’ concurrence is a reminder that insofar as Americans “lack agreement about the purpose of our country, the nature of the common good, and the meaning of human flourishing,”⁴² it is essential that we develop the grace to address our differences through humility, patience, and tolerance.⁴³

Clearly, Espinoza is a victory for religious freedom because it prevents States, and public officials, from discriminating against religiously affiliated schools and people of faith. At the same time, Espinoza is a major boost to proponents of school choice.⁴⁴ Accordingly, given the importance of education as “perhaps the most important function of state and local governments,”⁴⁵ a convincing argument can be made that “[s]chool choice is the civil rights statement of the year, of the decade, and probably beyond, because all children have to have access to quality education”⁴⁶

School choice is essential because, at a time when American students continue to lag behind their international peers,⁴⁷ it is essential to remember that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”⁴⁸ Put another way, insofar as Americans support the notion of “choice” in a variety of other arenas, it is perplexing why critics such as teacher unions⁴⁹ balk at deferring to parents wishing to exercise their right to choose where their children are to be educated. It is, then, essential to afford parents greater opportunities to have their children educated in the schools of their choice, presumably because their values are consonant with those modeled and taught in those schools.

Espinoza represents a significant step toward achieving the as yet unfulfilled promise of Brown v. Board of Education of equal educational opportunities for all of America’s children…

School choice also offers a possible path toward closing the persistent achievement gap between poor, disproportionately minority children and their wealthy, disproportionately White peers.⁵⁰ Simply put, not every child thrives in the centralized secular approach offered in many public schools. Indeed, a strong argument can be made that current educational policies have actually harmed, not helped, Black children, in particular.⁵¹ While teachers’ unions and most liberals-progressives oppose school choice,⁵² the reality is that large, even overwhelming, majorities of African-Americans and Latinos favor school choice.⁵³

Aware of the benefits of school choice for students from minority groups, allowing parents to select the schools their children will attend is crucial to the success of their young. School choice is particularly important because research bears out that when parents are free to act as they deem appropriate for their children, their increased involvement typically enhances student academic success.⁵⁴ Student academic success is especially evident in non-public schools which ordinarily have more stringent academic standards.⁵⁵ Researchers have described this resulting beneficial relationship between and among parents, educators in the schools their young attend, and their children as a form of social capital that strengthens the quality of schooling⁵⁶ and ultimately the Nation.

In sum, Espinoza accomplished three significant ends. First, the Court recognized that religious bigotry, however fashionable in the late nineteenth century, is incompatible with a Republic conceived in liberty.⁵⁷ Second, at least in the view of Justices’ Thomas and Gorsuch, it is clear that the inalienable right to practice one’s faith is not subordinate to other constitutional values. Third, and most significantly, from a policy standpoint, Espinoza has removed unnecessary roadblocks to school choice. In doing so, Espinoza offers a golden opportunity for parents who previously lacked the full financial resources to pay to have their children educated in the schools of their choice by affording them, rather than government officials, the opportunity to exercise their rights in selecting the schools their children will attend.

Espinoza has the potential to play a major role in helping to end what former President George W. Bush described as the “soft bigotry of low expectations.”⁵⁸ This “soft bigotry” condemns many children, especially those from economically deprived backgrounds, to attending low performing schools from which they have little, if any, chance of succeeding academically and beyond. Thus, Espinoza represents a significant step toward achieving the as yet unfulfilled promise of Brown v. Board of Education⁵⁹ of equal educational opportunities for all of America’s children, regardless of their races, creeds, ethnicities, genders, socioeconomic or immigration statuses, and/or (dis)abilities, which is a goal worth pursuing perhaps now more than ever before in the Nation’s history. ♦

Charles J. Russo, M.Div., J.D., Ed.D. is the Joseph Panzer Chair of Education in the School of Education and Health Sciences (SEHS), Director of SEHS’s Ph.D. Program in Educational Leadership, and Research Professor of Law in the School of Law at the University of Dayton, OH. He is also an Adjunct Professor at Notre Dame University of Australia School of Law, Sydney Campus.

William E. Thro, M.A., J.D is General Counsel of the University of Kentucky, former Solicitor General of Virginia, and Vice President of the National Education Finance Academy where he will serve as President in 2022-23. Mr. Thro writes in his personal capacity and his views do not necessarily represent the views of the University of Kentucky.

Recommended Citation

Russo, Charles J. and William E. Thro. “Born of Bigotry, Died in Religious Liberty: The Supreme Court Ends the Blaine Amendments in Empowering Parental Choice.” Canopy Forum, July 14, 2020. https://canopyforum.org/2020/07/14/born-of-bigotry-died-in-religious-liberty/

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