The U. S. Supreme Court is currently deliberating a case involving a Montana state constitutional provision steeped in historic anti-Catholic bigotry. The justices’ decision could drastically impact the future of school choice programs across the country.
In late January, the justices heard Espinoza v. Montana Department of Revenue. The court must determine whether the Montana Department of Revenue violated the U.S. Constitution when it denied students (such as the Espinoza family) access to a legislatively enacted school choice program because they wished to use the scholarship funds to attend a private religious school. The department denied program eligibility to religious schools based on the state’s constitutional ban on state aid to “sectarian” organizations, known as the “Blaine Amendment.”
The case has significant implications. First, it is hoped that states’ Blaine Amendments, enacted during a time of anti-Catholic bigotry, will be effectively struck down. Second, if the case offers a positive outcome, one more barrier will be removed to the enactment of school choice programs that help students attend private schools, and which empower families to find schools that best serve their needs, regardless of income or ZIP code.
Although the U.S. Supreme Court has upheld such school programs against federal constitutional challenges, a ruling in favor of the Espinozas and other families will inoculate school choice programs against most state constitutional challenges.
Anti-Catholic activists
A wave of anti-Catholic bigotry exploded in the United States after the Civil War as many Catholic immigrants poured into the country. Because public schools required instruction in a generic form of Protestantism, Catholics set up their own schools. They also believed that they were entitled to public funds to maintain schools consistent with their faith.
These schools, in turn, became political targets by those who believed that Catholicism posed a threat to liberty and American values.
In 1876, anti-Catholic activists, including the “Know Nothing” party (a large faction within the Republican Party of the time) and the American Protective Associations, proposed a federal constitutional amendment barring aid to schools “under the control of any religious sects” (that is, Catholic schools, but also any non-Protestant religious sects). That proposal had the aid of President Ulysses S. Grant, and a champion in Sen. James G. Blaine of Maine (yes, Blaine, Minnesota, is named for this famous crusader).
Legal historian Philip Hamburger documents in his book “Separation of Church and State” how Blaine Amendments were a means of ensuring public funds would not assist in the propagation of the Catholic faith so that the United States would retain its Protestant identity and its values free from foreign interference, that is, the pope.
The federal “Blaine Amendment” failed, but a wave of them were enacted as state constitutional amendments. Some states were required to include a Blaine Amendment as a condition of being granted statehood. Today, 37 states have Blaine Amendments in their state constitutions, including Minnesota.
At the Supreme Court
The Espinoza case started in 2015 when the Montana Department of Revenue created a rule, based on the Blaine Amendment, barring families from using the state’s opportunity scholarship tax credit program to attend religious schools. This rule was created despite the fact that tuition money comes from private donors (who receive the tax credit) who give to charitable organizations, which then give scholarships to students. In other words, there is no direct state aid to religious schools.
The Espinozas, along with two other families, sued the Department of Revenue because they wished to participate in the program and attend private religious schools. When the Montana Supreme Court upheld the religious schools’ exclusion, the families’ lawyers, the Institute for Justice (disclosure: my former law firm), brought the case to the U.S. Supreme Court, where it was heard Jan. 22.
A ruling in favor of the families would be good news here in Minnesota. Our state Supreme Court has already interpreted our Blaine Amendment very narrowly, tossing, for example, Blaine Amendment challenges to programs such as the post-secondary enrollment option. But the ACLU and Education Minnesota have warned the Legislature that school choice programs are unconstitutional.
The Espinoza case would put that issue to bed and clarify that the Blaine Amendment is not a barrier to school choice programs that allow students to attend private religious schools. That would be a big win for students and a blow to the anti-religious bigotry of yesterday and today.
Jason Adkins is executive director of the Minnesota Catholic Conference
Join fellow Catholics at the Capitol this legislative session. The Minnesota Catholic Conference is providing multiple opportunities for Catholics from across Minnesota to come together to become informed of the important issues that Minnesotans face this session, interact with legislators as advocates for life, dignity and the common good, and intercede on behalf of lawmakers through prayer and devoted advocacy.
Capitol 101
Take time to pray together for legislators and learn about some of the major issues they’re facing this session. Set up a meeting with legislators afterwards.
- 9:30 a.m. – 12 noon April 16
- 1:30 p.m. – 4 p.m. May 7
The Advocacy Hour
Drop in at any time to advocate and spend time in adoration of the Blessed Sacrament. There will be a private room set up inside the Capitol for adoration. We’ll also help find legislators and provide information on a couple key issues that they’ll be deciding at the end of the session.
- 9 a.m. – 4 p.m. May 6
Prayer service for National Day of Prayer
To mark the National Day of Prayer, join Catholics from across Minnesota for a prayer service and rosary in the Capitol Rotunda. Set up a meeting with legislators while there.
- 4:30 – 5 p.m. May 7
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