Will the Washington Post laud John Roberts’ independence after today’s ruling in Espinoza v Montana Department of Revenue? Don’t hold your breath, but religious schools can breathe a little easier after this 5-4 decision. Once states set up scholarships for students, they cannot deny them on the basis that the money might go to religious schools chosen by the students or parents.
It’s yet another blow to the Blaine Amendments in several states:
Chief Justice John Roberts wrote for the court. He was joined by fellow conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. The court’s four Democratic appointees dissented.
Roberts wrote that a decision by the Montana Supreme Court to invalidate a scholarship program on the basis that it would provide funding to religious schools in addition to secular schools “bars religious schools from public benefits solely because of the religious character of the schools.” …
Shortly after the program was enacted, the Montana Department of Revenue put in place a rule that barred scholarship recipients from using funds from the program to pay for religious schools.
That rule was intended to comply with a provision of the Montana Constitution, which forbids “any direct or indirect appropriation or payment from any public fund or monies … for any sectarian purpose,” including “to aid any church, school, academy, seminary, college, university, or other literary or scientific institution.”
Similar prohibitions, known as Blaine Amendments, exist in the constitutions of 36 other states, and in many cases stemmed from anti-Catholic sentiments.
Interestingly, Roberts barely touches on the Blaine Amendments in his opinion, with only two brief references. Justice Samuel Alito argues much more specifically about the malevolent nature of Blaine Amendments:
Backers of the Blaine Amendment either held nativist views or capitalized on them. When Blaine introduced the amendment, The Nation reported that it was “a Constitutional amendment directed against the Catholics”—while surmising that Blaine, whose Presidential ambitions were known, sought “to use it in the campaign to catch antiCatholic votes.”7 The amendment had its intended galvanizing effect. “Its popularity was so great” that “even congressional Democrats,” who depended on Catholic votes, “were expected to support it,” and the congressional floor debates were rife with anti-Catholic sentiment, including “a tirade against Pope Pius IX.”8
Montana’s no-aid provision was the result of this same prejudice. When Congress allowed Montana into the Union in 1889, it still included prominent supporters of the failed Blaine Amendment. See Sen. Daines Brief 10–13. The Act enabling Montana to become a State required “