Thomas Jefferson wrote in 1802 that the First Amendment created “a wall of separation between Church and State.” A case before the U.S. Supreme Court today could not only tear down that wall – it could declare that efforts by the states to enforce the wall are unconstitutional.
The case, Espinoza v. Montana Department of Revenue, concerns a Montana program that provides tax credits for donating to tuition scholarships for private schools, most of which are religious schools. A type of school voucher program, it’s not as blatant as the Indiana program that directly funds tuition for students in religious schools, but it accomplishes the same purpose.
Montana created the program in 2015, but the state supreme court ruled it violated the state constitution, which bars public funds from going to religious institutions. A parent sued, and powerful pro-voucher groups have pushed the case to the Supreme Court.
A key feature of their argument is that prohibitions on state funding for religion are “Blaine amendments” that were adopted in the late 1800s because of anti-Catholic and anti-immigrant bias. Therefore, advocates say, they should be struck down in the name of religious freedom.
The name comes from Sen. James Blaine, who introduced a failed amendment to the U.S. Constitution in 1875, a time of growing anti-immigrant sentiment, to bar federal funding of religious institutions. But as Willamette University law professor Steven T. Green told Education Week, state prohibitions on public support of religion go back as far as the 1830s. Also, Blaine wasn’t anti-Catholic.
“We all recognize the Protestant-Catholic conflict of the 19th century, but to boil that down as the primary explanation for 100 years of the development of state no-aid provisions really oversimplifies history,” Green said.
Indiana’s constitution has included a ban on state funding for religion since 1851, when the current constitution was adopted. There was anti-Catholic and anti-immigrant sentiment in Indiana at the time, as evidenced by the rise of the Know Nothing Party. But I’ve never seen evidence that the ban on public funding of religion was motivated by bias. Instead, the men who wrote the constitution argued that taxpayers shouldn’t have to fund a religion that wasn’t their own.
The Indiana Supreme Court ignored that plain language when it ruled in 2013 that Indiana’s voucher program was legal. It said the state funding was going not to the schools but to the families that are awarded the voucher scholarships – even though they don’t see the money, which goes directly to the schools.
Indiana’s voucher program provided $161 million last year to private schools, nearly all of them religious schools. Many of those schools openly discriminate in admissions and hiring.
Partisans on both sides are calling Espinoza v. Montana potentially the most significant education case before the Supreme Court in 50 years, and American Federation of Teachers President Randi Weingarten says it’s “a virtual earthquake in terms of religious liberty and public education.”
Oral arguments are scheduled for today at 10 a.m.