By DEACON MIKE MANNO
The Blaine Amendments got a hearing before the U.S. Supreme Court late last month, and, according to reports, Chief Justice John Roberts — splitting his time between court business and the impeachment trial — was there.
The Blaine Amendments, in case you have forgotten, are a series of state constitutional amendments that basically prohibit giving any public aid to religiously affiliated schools. They were adopted after a similar national amendment was proposed by Maine Republican Sen. James G. Blaine in 1875 during a wave of nativism and anti-Catholic bigotry that was sweeping the nation.
Sen. Blaine’s amendment was defeated in Congress, but the idea caught on and “Little Blaine” amendments were adopted in nearly 30 states by 1900. All prohibited any public aid to sectarian schools.
The Blaine Amendments have lived on and one state that still has one is Montana, which was adopted in 1889. After a constitutional revision, the 1972 version reads:
“The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriations or payments from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
Last summer I noted that the constitutionality of Montana’s law was being challenged in the Supreme Court in Espinoza v. Montana Department of Revenue. The challenge involves a case in which scholarship funds, collected from tax credit donations, could be used to provide scholarships to either public or private schools.
Administrators from the department of revenue, however, determined that payments for tuition at religious schools violated the state’s Blaine Amendment and adopted a rule excluding the use of scholarship funds at religiously affiliated schools.
In the lawsuit that followed, the Montana Supreme Court upheld the legality of the Blaine Amendment but struck down the scholarship program. Appeal to the U.S. Supreme Court followed and the court agreed last summer to hear the case. Nearly 60 amicus — friend of the court — briefs were filed and oral argument was held January 22.
Hope for a ruling that the Blaine amendments would be deemed unconstitutional centered on a 2017 case, Trinity Lutheran v. Comer. There, the court held that a Missouri program could not prohibit a church-operated day care from receiving funds to resurface its playground despite the state’s Blaine Amendment. However, in a footnote, the court noted that its ruling only applied to the specific program at issue, thus leaving the broader constitutional question open for another day. Notably, two justices in the majority, Neil Gorsuch and Clarence Thomas, did not concur in the footnote.
In the current case, Espinoza, the plaintiffs put the issue of the Blaine Amendment at the heart of their case, writing, “This case raises the question of whether government may bar religious options from otherwise neutral and generally available student-aid programs.”
Noting that two justices of the Montana Supreme Court had dissented from its ruling, their brief stated, “Both expressed deep concern that the court’s opinion ran afoul of the First Amendment. As one dissenting justice quoted, ‘[t]he exclusion of a group from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution’.”
The state of Montana argued back in its brief, “[T]he court held, the [scholarship program] constitutes the precise type of indirect payment the [constitution] sought to prohibit….Having reached this conclusion on independent and adequate state grounds, the court did not reach [constitutional questions] because by invalidating the law on its face it resolved the Petitioners’ claim that the Department’s rule unconstitutionally excluded them from the program. There being no scholarship program, Petitioners’ constitutional challenge to the rule was ‘superfluous’.”
So the first question with which the court must grapple is: Since the Montana court invalidated the entire program and there is now no “unequal” application as between public and private schools, does that moot the case?
That was picked up on during oral argument. Three of the justices queried the attorneys on whether the plaintiffs even had standing to sue since the program complained of no longer exists. According to Amy Howe at SCOTUS Blog, Justice Elena Kagan told the lawyers, “I’m having trouble seeing where the harm is in this case…if you go to a religious school or you go to a secular school you’re in the same boat.”
But in another exchange between the court and the lawyers, Justices Brett Kavanaugh and Neil Gorsuch seemed to suggest that this case was just like Trinity Lutheran, “If you are running a scholarship program in which people are denied or granted funding depending on their religious status, how is that consistent with Trinity Lutheran?”
Howe noted that the other justices’ questions mostly revolved around school funding issues. Thus, she suggests that the case will probably be settled by how the chief justice and Justice Stephen Breyer vote.
The case doesn’t appear to be the slam-dunk the opponents of the Blaine amendments had hoped for, especially since the court is reluctant to issue sweeping constitutional rulings; note how it deliberately used a footnote to limit the breadth of Trinity Lutheran. The court’s opinion will probably come in late spring. We’ll keep a watch out for it.
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In another type of discrimination, Swiss Air Lines was in the habit of giving small boxes of chocolates to its passengers. The chocolates were supplied by a firm headed by Jurg Laderach. Unfortunately for his business, Mr. Laderach is also president of an evangelical organization based in Switzerland called “Christianity for Today” (CFT). Among other things, CFT holds to traditional marriage and family values and is pro-life.
Left-wing activists, outraged by Laderach’s involvement with CFT, have boycotted and even vandalized his stores; in one instance they used butyric acid, the strong smell of which caused respiratory irritation as well as nausea and vomiting, forcing the store to close for two days. Last December far-left homosexuals stood outside of one store hugging and kissing.
A German homosexual lobby in Germany stated, “One way of protesting would be, for example, if hotels or restaurants decided to eliminate Laderach’s products from their range of goods and clearly mark the reason.” A few days later, Swiss Air Lines, bowing to pressure, did just that.
Once again, in a story that is much too familiar, the far left has struck against a Christian businessman to “punish” him for his beliefs. Where is the cry of outrage? If we don’t answer that now, we’ll be asking that when they come for us.
You can reach Mike at: DeaconMike@q.com.
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