In another high-profile 5-4 decision, the majority of the United States Supreme Court ruled on June 30 in Espinoza v. Montana Department of Revenue that Montana’s Supreme Court violated the U.S. Constitution when it struck down a Montana law allowing for tax credits for donations to private religious school scholarships. In a powerful decision upholding the First Amendment’s Free Exercise Clause, the Court issued a decision that will surely lead to challenges of similar laws across the country. As the Court simply put it: “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.”
Montana’s state constitution, like those in 37 other states, contains a “no-aid” provision that prohibits state funds from being disbursed to religious schools. Such bans are often referred to as “Blaine Amendments” following an 1875 failed federal constitutional amendment to ban federal support to religious schools. In 2015, the Montana legislature created a tax credit scholarship program whereby donors to the program would receive a dollar-for-dollar tax credit for any donations to private school scholarships, even for religious schools. The Montana Supreme Court struck down the program as violative of the state’s constitution banning state aid to religious institutions.
The majority decision, written by Chief Justice Roberts, found that Montana’s Supreme Court’s interpretation of its own state constitution resulted in a state constitutional provision that violated the Free Exercise Clause of the U.S. Constitution. According to the majority, the state ban on aid to religious schools clearly prohibited religious schools in the state from receiving funds via the tax credit program simply because the schools are religious. Although the tax credit was intended for all private schools – whether religious or not – the state constitution only prohibited religious schools from receiving such aid. Such clear discrimination required a justification under the Court’s strict scrutiny analysis. The majority found that the proffered justifications for preventing religious schools from accessing state aid could not pass this heightened standard because they were not “narrowly tailored” to promote “interests of the highest order.” As such, the majority of U.S. justices struck down and rendered unenforceable Montana’s version of the Blaine Amendment.
In a concurring opinion, Justice Alito emphasized that the origins of the original Blaine Amendment had a clear anti-Catholic bias. That bias permeated to all of the copycat amendments at the state level and have resulted in significant costs for parents of Catholic, Jewish, and other religious faiths that want to send their children to schools more in line with their personal religious beliefs but were heretofore ineligible for state funding to the same extent as their nonsectarian counterparts. Justice Alito would clearly strike down any state version of a Blaine Amendment, not just that of Montana that was presented in this case. The majority opinion seems to do just that, and sets up future challenges by religious institutions against their states' respective Blaine Amendments, by concluding in clear terms: “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.”
Of note, New York’s version of the Blaine Amendment was incorporated in 1895 into the New York State Constitution and prohibits state funding for educational institutions that are in whole or in part “under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.” N.Y. Const. art. XI, § 3 (emphasis added). Limitations in New York that are based on the Blaine Amendment are now subject to challenge. On the other hand, the Supreme Court distinguished and did not overrule an earlier Supreme Court decision (Locke v. Davey, 540 U.S. 712 (2004)) in which the Court upheld a state’s prohibition on state funds being used specifically for an “essentially religious course of instruction” (in that case, training to become a minister to lead a congregation). Accordingly, New York regulations which state explicitly that “[n]o portion of any State aid paid to an institution of higher education pursuant to the provisions of sections 6401 and 6401-a of the Education Law shall be used for the religious instruction or religious worship or for the advancement or inhibition of religion,” 8 NYCRR 150.2 (emphasis added), may still be permissible so long as it is not used to exclude religious schools from participation simply because they are religious. Under this framework, many religious institutions in New York have been ineligible for state funds in whole or in part. We would not be surprised to see challenges to New York’s and other states’ respective Blaine Amendments in the near future.