Supreme Court Heard Oral Argument in a Blaine Amendment Case - Granite Grok

Supreme Court Heard Oral Argument in a Blaine Amendment Case

Biden admits his court packing position

The Supreme Court’s Blaine Amendment case is important because 37 states have Blaine Amendments. The case involves a Montana tax credit scholarship programThe tax credit program provided scholarships for underprivileged kids to use at private schools.  The Montana legislature passed the law.

Related: Blaine Amendments Are Going on Trial

The case

Initially, families could use scholarship funds at qualified religious schools. The Montana Department of Revenue then implemented an administrative rule. It overrode the legislature excluding religious schools. In doing so the executive department did cite a provision in the state Constitution. The provision is the Montana Blaine Amendment barring state funds from aiding religious organizations.

Parents who relying on the scholarship funds to send their kids to religious schools challenged. They took the Revenue Department and its administrative rule to state court. The basis of the challenge is violation of the religion clauses of the U.S. Constitution and the 14th Amendment’s equal protection clause.

The state’s highest court struck down the program in its entirety. It went further than the Department of Revenue. The basis for their decision was violation of the “no aid” provision in the state Constitution. About 37 states have similar provisions. They are the Blaine Amendments. They block public money from supporting “sectarian” schools.

Discrimination

Justice Clarence Thomas explains in Mitchell v. Helms (2000). “[I]t was an open secret that ‘sectarian’ was code for ‘Catholic.’”  Now, the Supreme Court has heard oral arguments in Espinoza v. Montana Department of Revenue. Here are five key exchanges from the argument:

1. Do the parents have standing to bring this challenge?

Justice Ruth Bader Ginsburg wanted to know why the parents have standing to bring this lawsuit in the first place. In order to bring a lawsuit, the complaining party must have an actual injury. Should the case originate with the religious schools or taxpayers? Should its origination been those who donate to the scholarship program and then receive a modest tax credit? The Plaintiff (the parents counsel) response was the parents were the beneficiaries of the scholarship program.

Justice Elena Kagan asked, “Where is the harm in this case at this point?” She pointed out that no one will be allowed to use the scholarship funds. So where is the discrimination? The Plaintiff’s response: The discrimination occurred when the Montana Supreme Court invalidated the program in its entirety. “You can’t let the remedy shield the discriminatory judgment…” The discriminatory judgment was “…mistakenly believing that this Blaine Amendment and the application of it did not violate the federal Constitution.”

The Plaintiff explains that taking away the scholarship funds is a clear injury. The parents have been penalized for their free exercise rights, not the schools’ right. The plaintiff said, “Everybody concedes that if all the parents in this program had wanted to choose secular schools, there’d be no basis for the state court’s ruling. The scholarship program would still exist.”

2. Are states required to give money to religious schools?

Justice Sonia Sotomayor asks if the parents believe the Constitution requires states to give money to secular and religious private schools. The Plaintiff explains states can choose whether or not they want to set up voucher programs. They do not have to authorize tax credit scholarships, or other school choice initiatives. However, once they do, they can’t discriminate between parents based on where they want to use those funds. He noted that states are not required to create these types of initiatives in the first place. But “if they give to one, they must give to the other.”

3. Will the court strike down all Blaine Amendments?

Sotomayor asked the Plaintiff if all state Blaine Amendments are unconstitutional. She went on for some time about “the long history of people going back to the founding who for non-discriminatory reasons … have taken the position that the state should not give money to religious institutions.” The Plaintiff replied that what the founding era evidence actually shows is that forced support of churches was prohibited, and that’s different from denying a “generally available benefit … to an institution or individual based on its religious character.”

4. Does eliminating the program eliminate the constitutional violation?

Justice Brett Kavanaugh asks Montana if it would be constitutional to allow use of scholarship funds at secular and Protestant schools but not Jewish, Catholic, or any other religious schools. Montana said, the “right lens to look at … is the establishment clause, which prohibits the state … from distinguishing between one religion versus a different religion.”

Kavanaugh followed up, asking why giving scholarships to use at secular schools but not at religious schools is not discrimination. Montana said there’s a “principled objection to funding of religious institutions,” but also that “coercing people to use funds at secular schools is a penalty on religion” and to balance the interests, the Montana court “simply leveled down” and eliminated the scholarship program.

He reiterates the Montana Blaine Amendment is not based on “religious bigotry.” To which Justice Kavanaugh replies these amendments were “certainly rooted in grotesque religious bigotry against Catholics. … That was the clear motivation for Montana’s amendment.”

5. How does this compare to other types of discrimination?

Justice Samuel Alito posed a hypothetical about a scholarship program where most of the recipients ended up being black. Would it be discrimination to strike the whole program down for that reason? Montana agreed that would be discrimination. Their response is race and religion are not “identical for all constitutional reasons.”

Alito pointedly remarked, “Basically what you’re saying is, the difference between this and race is, it’s permissible to discriminate on the basis of religion. It’s not permissible, ever, to discriminate on the basis of race.”

The Plaintiff addressed this issue in his opening, saying, “If the Montana Supreme Court had invalidated this program because it included historically African American schools or all-girls schools, that would be a straightforward equal protection violation. Nothing about it would be cured by the fact that other parents had been denied funding as well.”

Now the wait

After hearing the argument justices Kavanaugh, Alito, and Roberts appear to have trouble with Montana’s arguments. Sotomayor, Ginsburg, and Kagan seem unsure about whether the parents had standing to bring the lawsuit in the first place. The justices should issue their ruling in this case by the end of June when the 2019-2020 term wraps up. Now the Supreme Court has heard oral argument in a Blaine Amendment case.

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