Last Rites for Blaine Amendments?

The election of President John F. Kennedy was a milestone that went a long way in sealing the tomb on anti-Catholic sentiments. With the election of an Irishman from Massachusetts, the spirit of the Know-Nothing Party was finally laid to rest.

However, a vestige of the past remains: Blaine Amendments, which have deprived students of meaningful educational opportunities for decades.

These amendments trace themselves back to the late 1800s when religion, specifically Protestantism, was widely practiced and taught in public school classrooms. With waves of Irish Catholic immigrants pouring into America, Anglo-Saxon Protestants pushed for state constitutional amendments prohibiting public funds from going to “sectarian” (i.e., Catholic) schools. Thus, the amendment’s original intent was to prevent Catholicism—but not religion overall—from being part of public education. Codified in 37 state constitutions, including Pennsylvania’s, Blaine Amendments now hinder states from exploring innovative policies that would allow funding to follow students to the educational choice that fits them best. 

Fortunately, the US Supreme Court has agreed to address the question of whether Blaine Amendments violate the First Amendment freedom of religion and the Fourteenth Amendment equal protection in Espinoza v. Montana Department of Revenue.  

Central to the case is Montana’s tax credit scholarship program, which was modestly similar to Pennsylvania’s Education Improvement Tax Credit (EITC). The state Department of Revenue promulgated rules that barred scholarships from being used at religious schools, citing Montana’s broadly written Blaine Amendment forbidding “any direct or indirect appropriation or payment from any public fund or monies…to aid any church, school, academy…controlled in whole or in part by any church, sect, or denomination” (emphasis added).

With the help of the Institute for Justice, three mothers who depend on the scholarships for their children’s education sued the Department. They argued that the program was constitutional since it was not utilizing public funds. However, the Montana Supreme Court not only sided with the state but ruled that the whole program was indirect aid to religious schools and, therefore, was unconstitutional. Now, the Supreme Court will render the final judgement on the constitutionality of Blaine Amendments like Montana’s.

The principles of the case are nothing novel to the Court.

• In Zelman v. Simmons-Harris, the Supreme Court upheld a Cleveland, Ohio school voucher program, ruling that it was “neutral with respect to religion” and sought to fulfil a “valid secular purpose” in enabling children to obtain an education.
• In Trinity Lutheran Church of Columbia, Inc. v. Comer, the majority found that Missouri’s denial of a church application for new playground surfacing was a violation of the church’s First Amendment protections by “denying a generally available benefit solely on account of the [applicant’s] religious identity.”

If the Supreme Court follows the same logic, the Montana moms stand a good chance of winning. Similar to the situation in Zelman, the Montana program was impartial to religion and was designed to ameliorate the conditions of disadvantaged students. Moreover, the ruling in Trinity Lutheran gives greater scrutiny when the state excludes a church from public benefits.  

With these cases setting the stage, the Supreme Court has the opportunity in Espinoza v. Montana Department of Revenue to assert the rights of parents and religious schools to apply for public benefits without compromising their constitutional rights. As a result, Blaine Amendments in Montana, as well as dozens of other states, may be laid to rest. Such an outcome will liberate students across the country to pursue broader educational choices that satisfy their needs.

While Pennsylvania’s EITC is already constitutionally permissible, the removal of the state’s Blaine Amendment will open new possibilities to prioritize students over a constitutional provision from a bygone era.

Zelman and Trinity Lutheran have set a precedent. With such constitutional momentum, the Court may finally perform last rites on Blaine Amendments.