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The government cannot take something away from a religious person simply because she is religious. That principle has been enshrined in American law as long as we have had a Constitution. The Supreme Court has the chance to protect this principle in the case currently before them: Espinoza v. Montana Department of Revenue.

Ms. Kendra Espinoza, the plaintiff, wished to take advantage of a Montana state program that offered her daughter a scholarship through a privately run program. The Montana Department of Revenue, however, swiftly issued a rule that prohibited families from using the scholarship at religious schools. Wanting to use the scholarship for such a school, Ms. Espinoza’s daughter was suddenly ineligible for the program.

In short, The Montana Department of Revenue deprived Ms. Espinoza of this scholarship funding purely because she wanted to educate her daughter at a school that espoused her faith. This discrimination was made possible by an old, insidious carve-out in the Montana constitution known as the Blaine Amendment. This amendment is not unique to Montana; in fact, many states have them.

The Blaine Amendments were enacted during the late 19th century in hostile reaction to the immigration of Roman Catholics to America’s shores. In an attempt to isolate and discourage Catholic immigrants, the House of Representatives passed a Constitutional amendment banning government aid to Catholic schools. When the amendment was defeated in the U.S. Senate, states took it upon themselves to work against this unpopular minority.

In due course, some 40 states passed versions of the Blaine Amendments, which remain in place to this day. These policies are not only unconstitutional but profoundly wrong. Indeed, as Justice Brett Kavanaugh said during oral arguments on Wednesday, they are rooted in “grotesque religious bigotry against Catholics.” Denying generally available public funds to religious schools solely on account of their religion frustrates the right of people like Kendra Espinoza to educate their children the way they see fit.

Today, the Blaine Amendments are not simply a problem for Catholics– far from it. While these 19th-century amendments were enacted to exclude Catholic schools from receiving any public support, they now provide a legal basis for discrimination against all religions. While similarly situated non-religious schools have access to a range of public benefits, Jewish, Muslim, Christian, and other religious schools do not under the Blaines.

The Blaine Amendments were previously at issue before the Supreme Court in the 2017 Trinity Lutheran case. In Trinity Lutheran, the Court’s opinion did not address the animus behind the Blaines directly, but instead ruled that a religious organization must be allowed access to public funding on equal grounds with non-religious organizations. In short, the Court declared that our nation’s tradition has never been to exclude religious institutions from generally available public benefits.

In Espinoza, the justices have the opportunity to finally rule the Blaine Amendments unconstitutional.

Indeed, the oral arguments seemed favorable to proponents of religious liberty. For example, Justice Samuel Alito made his position clear in his questioning, saying that when a state does something for unconstitutional reasons, that action can be ruled unconstitutional by the Supreme Court. He grounded this assertion in the Supreme Court’s precedent in a case called Village of Arlington Heights.

According to Justice Alito, if the reasoning is unconstitutional, the Supreme Court has the right to overrule the law or policy, even if the end result of the state action affects everyone equally.

Andrew Bennet, Director of the Religious Freedom Institute’s North America Action Team, issued an open letter expressing opposition to the Blaine Amendments and emphasizing the ways that they undermine the religious freedom of individuals, families, and religious institutions.

The Blaine Amendments represent a dark chapter in American history, and it is time that the Supreme Court close that chapter once and for all.


Editor's note: this piece has been edited since publication.

David Benger is a JD Candidate at Harvard Law School. He earned his Bachelor's Degree at Brandeis University and his Master's at Schwarzman College, Tsinghua University.

Nathan A. Berkeley is the Communications Director and Research Coordinator with the Religious Freedom Institute, a non-profit based in Washington, D.C. that is committed to achieving broad acceptance of religious liberty as a fundamental human right, the cornerstone of a successful society, and a source of national and international security.

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