Ray Carter | June 30, 2020
U.S. Supreme Court upholds tax-credit scholarship program
In a ruling with implications for Oklahoma, the U.S. Supreme Court has found that Montana government officials cannot prevent children who participate in a state tax-credit scholarship program from using their scholarships to attend religiously affiliated private schools.
Like Oklahoma, Montana provides a state tax credit to individuals or entities who donate to scholarship programs that typically allow low-income children to attend private schools. And, like Oklahoma, Montana has a “Blaine amendment” in its state constitution that prohibits government aid to any school “controlled in whole or in part by any church, sect, or denomination.”
The Blaine language in both state constitutions is an artifact of anti-Catholic animus that dominated from the late 1800s to the early 20th century. That state constitutional language is modeled after a measure originally drafted by U.S. House Speaker James G. Blaine of Maine in 1875. Blaine’s constitutional language was originally proposed to prevent taxpayer funding of Catholic schools at a time when most schools incorporated Protestant religious teaching into daily lessons.
As a result of the state’s Blaine amendment, the Montana Department of Revenue promulgated a rule that prohibited families from using tax-credit scholarships at religious schools. Three mothers who were denied scholarship funds for their children’s tuition sued, alleging the state had discriminated against them on the basis of their religious views and the religious nature of the school they had chosen.
Several families who qualified for the tax-credit scholarship program and wanted to send their children to a private Christian school had incomes of $30,000 or less. The lead petitioner in the case, Kendra Espinoza, is a single mother who works three jobs.
The Montana Supreme Court previously ruled against the mothers and in doing so struck down the entire scholarship program (although the Montana Legislature never repealed the program in statute).
But the U.S. Supreme Court sided with the petitioning families and ruled Montana could not bar families from independently choosing to use a scholarship at a private religious school.
The 5-4 majority opinion held, “The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution.”
The majority opinion, authored by Chief Justice John Roberts, noted the U.S. Supreme Court has “long recognized the rights of parents to direct ‘the religious upbringing’ of their children,” and that many parents “exercise that right by sending their children to religious schools, a choice protected by the Constitution.”
In contrast, the court majority found Montana’s no-aid provision “penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.”
“We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs,” the court majority opinion stated.
The ruling said the Establishment Clause objections raised by some Montana state officials were “particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools. “
The court concluded the state of Montana was barring 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. This is apparent from the plain text.”
Joining Roberts in the majority were Justices Clarence Thomas; Samuel A. Alito, Jr.; Neil M. Gorsuch; and Brett M. Kavanaugh.
Roberts also noted taxpayer support of religious schools has been common for much of the nation’s history.
“In the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones,” Roberts wrote.
The majority opinion repeatedly compared the Montana case to a prior case in which the court ruled against the state of Missouri after it barred a church from receiving state grants to resurface school playgrounds. In that case, the U.S. Supreme Court declared Missouri’s policy violated the Free Exercise Clause of the First Amendment “by denying the Church an otherwise available public benefit on account of its religious status.”
The majority also said the Montana case differed from a prior ruling that held the state of Washington could bar state-funded college scholarship aid to students seeking degrees in ministry. Even in that case, the majority noted, the Washington state program “allowed scholarships to be used at ‘pervasively religious schools’ that incorporated religious instruction throughout their classes.”
In a concurring opinion, Alito stressed the history of Blaine amendments in state constitutions. He noted numerous briefs filed in the case showed Blaine amendments were “prompted by virulent prejudice against immigrants, particularly Catholic immigrants” and that “a prominent supporter of this ban was the Ku Klux Klan.”
Alito also noted that Montana’s “no-aid provision retains the bigoted code language used throughout state Blaine Amendments.”
In a separate concurring opinion, Gorsuch wrote, “Often, governments lack effective ways to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all” (emphasis in original).
In a dissent, Justice Ruth Bader Ginsburg said the court had no reason to rule on potential religious discrimination since the Montana Supreme Court chose to effectively repeal the entire tax-credit scholarship program.
“Recall that the Montana court remedied the state constitutional violation by striking the scholarship program in its entirety,” Ginsburg wrote. “Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.”
She suggested the court majority in “urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause” seems to “treat the no-aid provision itself as unconstitutional.”
Oklahoma Attorney General Mike Hunter was among those who quickly praised the court’s decision.
“This landmark ruling is a major victory for school choice and religious liberty,” Hunter said. “The Constitution is clear: religious discrimination like this is un-American and unacceptable, and I am encouraged to see the court yet again enforce this principle. This decision will ensure that school-choice programs nationwide continue to provide families and their children with the opportunity to seek a quality education of their choosing—religious or otherwise. My colleagues and I are very pleased with today’s opinion, and applaud the justices who voted to reinstate this important program.”
In September, Hunter led a coalition of 18 state attorneys general and governors in a brief encouraging the justices to reverse the Montana case on First Amendment grounds. The U.S. Supreme Court cited half a dozen pages of the attorney general’s brief favorably in its majority opinion, and Alito also cited the attorney general’s brief in his concurrence.
American Federation for Children President John Schilling also hailed the court’s decision.
“Today is a good day for children and families in Montana and a historic day for our country,” Schilling said. “Every child, regardless of income, deserves high-quality educational options. The Court rightly recognized the discriminatory nature of state Blaine amendments, and they've once again affirmed the constitutionality of school choice programs. These Blaine laws, spurred by a nineteenth century movement rooted in anti-Catholic animus, have long been used by opponents of school choice to prevent families from pursuing educational options.”
In contrast, the American Civil Liberties Union (ACLU) decried the decision, tweeting that the court ruling “undermines true religious freedom and attacks the foundations of the separation of church and state.”
The ACLU has previously dismissed the anti-Catholic roots of state Blaine Amendments, arguing their history is “much more complicated.” However, even as it made that argument, the ACLU also conceded, “There is no question that many people who supported the original Blaine Amendment in 1875 were indeed antagonistic to Catholics, and it was used by some supporters to divide Protestants and Catholics.”
As in Montana, opponents of school choice have cited the Blaine Amendment language in the Oklahoma Constitution when seeking to dismantle programs that aid some of the state’s neediest children.
However, those efforts have not succeeded.
Opponents of the Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act, which provides private-school scholarships to children with special needs and foster children, previously claimed the program violated the provision of the Oklahoma Constitution that bans the expenditure of taxpayer funds “directly or indirectly” for the benefit “of any sect, church, denomination, or system of religion.”
The Oklahoma Supreme Court, in a unanimous 2016 decision, held the scholarship program was constitutional.
“When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken,” the justices stated (emphasis in original).
A concurring opinion authored by then Oklahoma Supreme Court Justice Steven Taylor declared the scholarship program was “religion neutral—it treats religious private schools the same as non-religious private schools.”
“The facts here are no different than the state making payments to a private institution, although religious, to care for needy, state-dependent children when those payments fail to cover the full cost of their care,” Taylor wrote. “The facts here are no different than the State sending inmates of a state prison to a church-affiliated hospital for medical care. The facts here are no different than a state Medicaid recipient being treated at a church-affiliated clinic. The facts are no different than a church-owned construction company building a road or a bridge for the State. None of these examples have anything to do with religion. They all are simple contract situations. A fee for service in which the State contracts required services to a non-governmental entity. It has nothing to do with religion. It has everything to do with fee for service and a mutual benefit contract.”
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.