A great day for school choice and religious freedom, and a wonderful victory against anti-Catholic bigotry disguised under the Blaine Amendments. Our abysmal inner city public schools are the very definition of systemic racism, and anything that lessens their grip is to be celebrated.
"The Supreme Court frowns on bias against religious schools
Whatever his jurisprudential faults, Chief Justice John Roberts often sides with the angels in disputes over religious liberty. Case in point: In a 5-4 decision Tuesday, the Supreme Court resurrected a Montana scholarship program that was in jeopardy because students used it to attend religious schools.
“A State need not subsidize private education,” the Chief Justice writes for the majority in Espinoza v. Montana Department of Revenue. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
Montana’s Legislature decided in 2015 to give a $150 tax credit to people who donate to a nonprofit scholarship fund, which then awards the money to families. Many states have similar programs. After one of her daughters was bullied for studying the Bible during recess, Kendra Espinoza moved them to a nondenominational Christian school, with the costs defrayed by scholarship funds.
But in 2018 the state Supreme Court struck down the program. Montana’s constitution has a clause that bans “any direct or indirect” payments to any schools or institutions controlled “by any church, sect, or denomination.” Many states passed such provisions, often called Blaine Amendments, amid the anti-Catholic fervor of the late 1800s.
The First Amendment, however, guarantees the free exercise of religion. This means, as the U.S. Supreme Court has held in a parade of cases, that the government can’t bar the faithful from neutral programs. Chief Justice Roberts, joined by the Court’s other four conservatives, applies the precedents to the Montana scholarships. Montana’s constitution, he says, impermissibly penalizes parents “if they choose a religious private school rather than a secular one, and for no other reason.”
Justice Samuel Alito, concurring, goes to town on the sordid history of Blaine Amendments. “The feelings of the day are perhaps best encapsulated by this famous cartoon, published in Harper’s Weekly in 1871, which depicts Catholic priests as crocodiles slithering hungrily toward American children as a public school crumbles,” he writes. “The resulting wave of state laws withholding public aid from ‘sectarian’ schools cannot be understood outside this context.”
The Chief Justice’s opinion lacks this brimstone, but it has the same effect of exorcising the spirit of Blaine. Plus, how about this tidy piece of originalism. “In the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones,” the Chief writes. “Even States with bans on government-supported clergy, such as New Jersey, Pennsylvania, and Georgia, provided various forms of aid to religious schools.”
It’s notable that the four liberals stuck together in dissent. In consequential cultural and political cases, the liberals vote as a bloc, even if, as here, they issue three separate opinions. This is one of the cases that would have gone the other way had Hillary Clinton nominated the Justice to replace Antonin Scalia.
Kendra Espinoza and other Montana parents can now look toward the fall hopeful that the scholarships they relied on will return. As states with Blaine Amendments consider passing new school-choice programs, they might become more ambitious—and less tentative about direct vouchers.
Florida has a Blaine provision but hasn’t waited. Last week Governor Ron DeSantis signed the biggest voucher expansion in American history. The Supreme Court’s ruling Tuesday could encourage others to follow."
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