For nearly a 150 years, Blaine Amendments have restricted the rights of people of faith, particularly Catholics.  Moreover, these “no-aid” provisions have harmed our political culture by misleading generations of Americans to believe that public benefits can under no circumstances be made available to religious institutions.

Nineteenth century “common” schools did not provide a religiously neutral education.  In Boston, for example, students were required to recite a Protestant version of the Ten Commandments and read from a Protestant translation of the Bible.  Catholics who refused were punished.  Catholics responded to this de facto establishment of religion by developing their own school system.  Parochial schools continue to be one of the great contributions the Church has made to American life. 

Catholic schools developed against the backdrop of strong nativist movements that had grown since the arrival of Catholic immigrants from Ireland and Germany beginning in the 1830’s.  The Know-Nothing party may be the most infamous example of this strain of virulent anti-Catholicism.  Priests were attacked, and churches were burned.  It was in this context that Senator James G. Blaine of Maine worked to amend the U.S. Constitution in 1875 to ensure that no public aid be provided to “sectarian” schools, which everyone understood to mean Catholic schools.  The amendment passed in the House but failed in the Senate.  However, some states adopted these “no-aid” provisions, and many states were required to include them in their state constitutions as a condition for their admission into the Union.  Today, 37 states have Blaine Amendments in their constitutions.  However, recent developments give reason to hope that the harms of Blaine Amendments are being remedied.

Trinity Lutheran v. Comer

The Supreme Court struck a major blow against Blaine Amendments in the case of Trinity Lutheran v. Comer (2017). 

Missouri provided grants to qualifying public and private schools, nonprofit daycare centers, and other nonprofit entities for the purchase of rubber playground surfaces.  Such surfaces are safer for children than gravel or asphalt surfaces.

Trinity Lutheran Church operated a preschool and daycare center.  It applied for a grant so that it could resurface its playground with state funding.  Missouri ranked Trinity Lutheran fifth among 44 applicants, but denied it a grant because of its religious affiliation.  State officials relied on a no-aid provision in the state constitution.

Trinity Lutheran sued, alleging a violation of the Free Exercise Clause, and the case was ultimately heard by the U.S. Supreme Court.  By a 7-2 vote, the Supreme Court held that, under the Free Exercise Clause, Missouri may not exclude Trinity Lutheran from grant eligibility because of its religious affiliation.

Drawing on its previous cases, the Court ruled that the Free Exercise Clause “protects religious observers against unequal treatment and subjects to the strictest scrutiny laws that target the religious for special disabilities based on their religious status.  Applying that basic principle, this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.”  [Internal quotation marks, brackets, and citations omitted.]  
Missouri expressly discriminated against potential grantees based on religious status by disqualifying them from a grant solely because of their religious affiliation.  The state’s policy was therefore subject to the most exacting scrutiny.

Missouri put Trinity Lutheran to a choice: either surrender your religious affiliation or be ineligible for the benefit.  When the state conditions a benefit in this way, it punishes the free exercise of religion.  Trinity Lutheran had a right to participate in a government benefit program without having to disavow its religious character.

Only a state interest of the highest order could justify the government’s exclusion of Trinity Lutheran on religious grounds.  Yet Missouri offered “nothing more” in support of the exclusion “than [its] policy preference for skating as far as possible from religious establishment concerns….  In the face of the clear infringement on free exercise before us, that interest cannot qualify as compelling.”

Because the case was decided on free exercise grounds, the Court declined to decide whether Missouri’s policy also violated the Equal Protection Clause.

As the U.S. bishops explained in their friend-of-the-court brief with the Supreme Court, “Missouri’s religious discrimination not only contravenes the First Amendment, it is profoundly demeaning to people of faith.  Official discrimination based on religion is no less invidious or stigmatizing than discrimination based on other protected traits.”  People of faith should not be discriminated against when it comes to publicly available benefits.

Espinoza v. Montana

In 2020, the U.S. Supreme Court took another step towards invalidating Blaine Amendments.  On June 30, the Court ruled 5-4 that the Montana Supreme Court erred in finding that the Free Exercise Clause permits the application of a provision of Montana’s state constitution to bar the use of state funds for a tax credit program to support scholarships whose beneficiaries include students at religious schools. 

In 2015, the Montana legislature created a scholarship program that provides a dollar-for-dollar tax credit up to $150 for donations to private scholarship organizations.  The Montana Department of Revenue promulgated a rule preventing such scholarships from being used at religious schools, in order to conform with Montana’s Blaine Amendment.  Three mothers who used the scholarships to send their children to a private Christian school filed suit.  In 2018, the Montana Supreme Court struck down the tax-credit program, holding that it violated the state’s Blaine Amendment.

Applying Trinity Lutheran v. Comer’s “unremarkable” conclusion that strict scrutiny applies when the government denies an otherwise available benefit solely because of the would-be recipient’s religious nature, the U.S. Supreme Court found that the Montana Supreme Court’s application of the state Blaine Amendment to the tax-credit program violated the Free Exercise Clause.  Declining to reach the question of whether restrictions on use of funds for religious purposes are generally or per se permissible, the Court found that Montana’s clear reliance on the excluded schools’ religious status brought the case squarely under Trinity Lutheran.  The opinion’s strict scrutiny analysis dispensed with Montana’s proffered governmental interests in maintaining its funding restriction, including Montana’s argument that the no-aid provision increases religious liberty, finding that “infringement of First Amendment rights … cannot be justified by a State’s alternative view that the infringement advances religious liberty.”

The USCCB filed an amicus brief jointly with a number of allied parties in this case, arguing that Montana’s Blaine Amendment’s reference to religious status rather than use called for the application of Trinity Lutheran and that “the status-use distinction collapses in the context of benefits for religiously grounded K-12 education.”  After the ruling, the bishops noted that the ruling is “good news, not only for people of faith, but for our country.  A strong civil society needs the full participation of religious institutions.  By ensuring the rights of faith-based organizations’ freedom to serve, the Court is also promoting the common good.” 

Carson v. Makin

The Supreme Court declined in Espinoza to reach the question of whether a distinction can be drawn between an entity’s religious status and its use of funds for religious purposes, such that a government can discriminate on the basis of religious use of funds as opposed to religious status. On October 29, 2020, in Carson v. Makin, a 1st Circuit panel unanimously answered that question in the affirmative.

Under a state statute, towns in Maine that do not operate a public high school provide money for tuition, up to a set amount, for their resident children to attend a private high school of their choice. But the statute mandates that the funds may only go to “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” This requirement had been upheld in court twice before, but three families asked the court to revisit the requirement in light of Espinoza and Trinity Lutheran. 

The 1st Circuit relied on Maine’s representation that it determines a school to be “sectarian” if it is “associated with a particular faith or belief system and…in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” In other words, Maine presented facts supporting the argument that its “nonsectarian” requirement aims at religious use as distinct from religious status. 

The court further observed that the nature of the tuition program – in which the funds are made available only to parents in towns without public high schools – indicated that its purpose is to provide those parents with the equivalent of a public education. Therefore, the court reasoned, the program’s exclusion of religious schools is properly regarded as a refusal to subsidize religious exercise, rather than to penalize it.

The families sought review from the Supreme Court, which heard oral arguments in the case in December of 2021. The USCCB submitted an amicus brief together with a number of interfaith partners, arguing that a distinction between religious status and religious use of funds is untenable in the context of religious schools, and that the 1st Circuit’s decision would create an end-run around Trinity Lutheran and Espinoza. A decision is expected soon.

 

Last updated: May 20, 2022