It took a century and a half, but the Supreme Court finally rejected the Blaine amendments. The Court’s decision in Espinoza v. Montana Department of Revenue is a victory for religious believers, schoolchildren, poor and working-class parents, and the rule of law. It is a loss only for bigots, militant secularists, and the teachers’ unions. The scandal is that four members of the Court would have gone the other way.
Kendra Espinoza, a Montana single mother working three jobs, had a scholarship to send her daughters to a private school of her choice; she chose Stillwater Christian School. The scholarship was partly funded by tax credits from the state that were available for parents to choose any private school, religious or not. Then, the Montana supreme court stepped in, ruling that because the program included religious schools, the whole thing had to be shut down for everyone.
The reason was Montana’s Blaine amendment. A relic of open anti-Catholic prejudice in the late 1800s, more than three dozen states have such amendments to their constitutions banning any state funds from going to any sectarian school or institution. “Sectarian” was code for “Catholic.” In practice, these amendments often mean that state school-choice vouchers and other state programs discriminatorily exclude religious schools and institutions. The Court … called that what it is: religious discrimination. …
… Chief Justice John Roberts’s opinion carefully focused on discrimination against “religious status and not religious use,” but Justice Neil Gorsuch reminded him that the First Amendment’s protections are broader than that: The Free Exercise Clause “protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.”