By DEACON MIKE MANNO, JD
A couple of weeks ago I had to admit that I missed the mark in the recently decided Bostock v. Clayton. I thought for sure that the Supreme Court would not redefine the word “sex” to include “gay, transgender, lesbian,” and whatever else, for protection under the equal employment laws. I was wrong and next Lent I’m going to give up predicting legal outcomes — at least in print.
However, giving the devil his due, as they say, I was right last February when I opined that a Montana case might become the death knell for what have become known as the Little Blaine Amendments. As a reminder, they were the state constitutional amendments adopted after the failure of a proposed U.S. constitutional amendment that would have prohibited giving any public aid to religiously affiliated schools. The national amendment was proposed in 1875 and was aimed at Catholic schools.
Some 30 states, including Montana, had adopted the state versions of the amendment.
In Montana, the Blaine Amendment was found to have been violated by a scholarship program in which funds were raised by donations to a tax credit fund. When the issue of the Blaine Amendment was raised, the state terminated the program. But a lawsuit, brought by several low-income parents, continued.
On the last day of June the Supreme Court, in Espinoza v. Montana, ruled the prohibition against religious schools was unconstitutional. It found, “Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.”
The court, by a 5-4 majority, held that the no-aid provision violated the Free Exercise Clause of the Constitution. “The prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them,” Chief Justice John Roberts wrote for the majority. “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.”
The four liberal justices dissented. Justice Ruth Bader Ginsburg, in her dissent, argued that the decision by the Montana Supreme Court upholding the law “does not place a burden on petitioners’ religious exercise. Petitioners may still send their children to a religious school. And the Montana Supreme Court’s decision does not pressure them to do otherwise.” She went on to argue that the law’s no-aid provision did not violate the Equal Protection Clause and as the case progressed to the Supreme Court that issue was not raised.
Justice Sonia Sotomayor argued that since the tax credit program had been terminated by the state the court has no jurisdiction. She wrote: “Today’s ruling is perverse. Without any need or power to do so, the court appears to require a state to reinstate a tax-credit program that the Constitution did not demand in the first place….
While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the state to practice its beliefs.”
Justice Stephen Breyer argued that there is an “inherent tension” between the Establishment Clause and the Free Exercise Clause which risks an entanglement between the two clauses. Thus the “course of constitutional neutrality in this area cannot be an absolutely straight line.”
He wrote: “Indeed, rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. That, in significant part, is why the court has held that ‘there is room for play in the joints’ between the clauses’ express prohibitions that is productive of a benevolent neutrality, allowing religious exercise to exist without sponsorship and without interference.”
“Play in the joints” is a term that the court has applied to the process of resolving the apparent conflicts between the Establishment and Free Exercise Clauses that can often lead to contradictory results if each were followed to its logical conclusion.
Most recently, it was used to decide a 2004 case, Locke v. Davey, in which the State of Washington sought to deny scholarships for those who would use that assistance to further their studies in theology in the hope of becoming a minister. In upholding the state’s aid prohibition, then-Chief Justice William Rehnquist noted the tension between the clauses and wrote, “There are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Thus, the play in the joints.
Reaction to the victory over the Blaine Amendments was, predictably, swift:
“It’s been a century-and-a-half since the bigoted Blaine movement took root in state constitutions throughout the country,” said Institute for Justice Senior Attorney Richard Komer, who argued the case before the court. “Today’s decision shows that it is never too late to correct an injustice, even one with as long and ignoble a pedigree as this one.”
“The Supreme Court delivered a major victory to parents who want to choose the best school for their children, including religious schools,” said IJ Senior Attorney Erica Smith, who was co-counsel on the case. “This is a landmark case in education that will allow states across the country to enact educational choice programs that give parents maximum educational options.”
“Again today the Supreme Court held that the U.S. Constitution prevents the government from treating religious organizations and schools unequally,” said Kelly Shackelford, president, CEO, and chief counsel to First Liberty Institute. “The justices made it clear that states cannot legally discriminate against religious organizations when they perform the same work secular institutions do. This is a victory for religious liberty.”
Brian Burch of CatholicVote said the ruling was “a long overdue victory for American families and a defeat for anti-Catholic bigotry. . . . In doing so, the court reined in state Blaine amendments which originated in shameful nineteenth-century anti-Catholic bigotry.”
Catholic League President Bill Donohue issued a statement in which he said, “This decision does not resolve all school choice issues, but it finally breaks the lock that the public school monopoly has had on education. It will be denounced by the public school establishment and its unions: They reject all competition, including charter public schools….It is a good day for Catholics, and indeed people of every faith.”
“Today’s decision will affect most of the 14 states that have strictly interpreted their state constitution Blaine Amendments to bar scholarships to children at religious schools. For decades, the creation and expansion of school choice programs have been inhibited by legislative concerns that they might conflict with state constitutions. Those concerns are now removed with today’s decision in Espinoza,” according to the Institute for Justice which prosecuted the case to its successful conclusion.
The problem, of course, is that the decision was close and any change in the composition of the court could affect it. The dissenting arguments, especially Justice Breyer’s, made it a closer case than I had expected, and could contribute to a narrow application in other religious liberty cases.
So are the Little Blaine Amendments dead? Dying, but still with a weak heartbeat. The death knell will probably come from legislation, not the courts. It can’t come soon enough.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday at 10 a.m. (Central Time) on Faith On Trial at IowaCatholicRadio.com.)
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