Imagine there was a program to help fund alternative schooling including religious schooling, and even the costs of homeschooling, that was not under the control of the U.S. Congress. Not possible, right? Wrong!

I was at the U.S. Supreme Court yesterday for oral arguments in the landmark case of Espinoza v. Montana Department of Revenue. No, I was not there to argue the case in for one side or the other. I was there because I had helped write a friend-of-the-court brief in favor of the side supporting the funding program for alternative schooling.

Yes, the justices were there in the majestic courtroom with Corinthian columns behind them and a high coffered ceiling above them. The seats were all packed. The reporters were all straining to get every word, the slightest nuance of how a justice might be leaning. And the public lines to get into the hearing were long, with only a very small number of those making it in.

Talk about a momentous occasion. This was it! The Supreme Court had already ruled that public school vouchers could be used at religious schools as long as the choice to attend a religious school was a purely individual and private decision without any state involvement. And the
Supreme Court had also already ruled that, where a state made available a program that could benefit anyone, religious people or institutions could not be excluded. So, why not allow state-based scholarship programs—funded by state tax credits—that could be used to fund alternative schooling, even religious schooling, where the choice of schooling was solely up to the scholarship recipient?

The answer is ancient state laws enacted with rank anti-Catholic bias known as Blaine Amendments. These Blaine Amendments are named after the 1870s Speaker of the House, James G. Blaine. It so happens that Blaine was running for President and sought to ride the anti-Catholic vote to victory. He sought to enact a constitutional amendment barring use of public funds for any “sectarian purpose,” which in those days was plain code for use at any Catholic school. Blaine’s amendment fell short of the necessary two-thirds approval in the U.S. Senate by just four votes. But many states then went on to add Blaine Amendments to their own state constitutions, with the same language and the same invidious anti-Catholic bias.

I know this story well because I have worked against the Blaine Amendment in my state, Massachusetts, for over twenty years. And, before me, many others labored—long, hard, and unsung—for the same purpose, but without success. Our Blaine Amendment was the direct product of virulent hatred of a “foreign ecclesiastical power,” and designed to prevent Catholic children from escaping the general Protestantism then taught in the public schools. These Blaine Amendments are the last roadblock: the final outward-facing palm at the schoolhouse door.

The relief sought by the plaintiff, Kendra Espinoza, is a court ruling declaring the Montana Blaine Amendment to be in violation of the U.S. Constitution and therefore ineffective in barring Montana’s tax-credit funded scholarship program. Ms. Espinoza uses the scholarship funding from the Montana program to help pay for her two daughters to attend a nondenominational Christian school. A single mother, she lacks the funds to pay for such schooling on her own. Her avowed purpose is that the religious values she teaches at home should be mirrored in what her daughters are taught in the classroom. The Montana Department of Revenue blocked the scholarship program based on the Montana Blaine Amendment. However, the scholarship program and Ms. Espinoza’s two daughters got a reprieve while the case challenging the Montana Blaine Amendment is waiting to be decided by the U.S. Supreme Court.

Ms. Espinoza’s legal argument basically is that the Montana Blaine Amendment bars recipients from access to funding for an otherwise neutral, publicly-available program, and from using such funding, based on strictly private choice, at a religious school. Ms. Espinoza’s lawyers, a crack team at the Institute for Justice in Washington, say such a bar from using a neutral program for religious purposes violates the non-discrimination clause of the Fourteenth Amendment and the free exercise of religion clause of the First Amendment. They also say that the anti-Catholic bias animating the Blaine Amendments likewise renders them unconstitutional. Many believe that based on past decisions of the Court and its current make-up that Ms. Espinoza stands a very good chance of prevailing.

So, what actually happens if Ms. Espinoza wins? The roadblocks will finally fall. States can then enact tax-credit funded scholarship programs, free of any fear of Blaine Amendments, where the scholarship funds can be used at religious schools and even to pay for the costs of homeschooling. These programs would give religious people a real chance to escape publicly-controlled schools that are more and more hostile to religion in general and especially to religious people. Of course, none of this will be easy politically, but then the problem will be politics and not state constitutional barriers.

That is what I saw at the U.S. Supreme Court today.