As the United States Supreme Court hears Espinoza v. Montana Department of Revenue, this might spell the end of the Blaine Amendments everywhere.

On Wednesday, January 22, 2020, the United States Supreme Court began to hear arguments in the case of Espinoza v. Montana Department of Revenue. The case is significant, as it is viewed as the most direct challenge to the so-called “Blaine Amendment”, which is named for Republican James Gillespie Blaine, a member of the U.S. House of Representatives and the minority leader in the 1870s.

The case involves Kendra Espinoza, who used a 2015 Montana law promoting school choice to enroll her children at the Stillwater Christian School, but shortly after the Montana Department of Revenue said that the money could not be used to send children to sectarian schools, citing Montana’s version of the Blaine Amendment. It states:

“Aid prohibited to sectarian schools. (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.

(2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education. (Montana Code Annotated 2019, THE CONSTITUTION OF THE STATE OF MONTANA, ARTICLE X. EDUCATION AND PUBLIC LANDS, Part X. EDUCATION AND PUBLIC LANDS, Aid Prohibited To Sectarian Schools Section 6.)

Kendra Espinoza sued, but the Montana Supreme Court ruled against her, and shut down the entire revenue program. The case was appealed to the United States Supreme Court, which brings us to the opening arguments.

The Blaine Amendment

The Blaine Amendment simply put, went beyond the establishment clause of the US Constitution to prohibit the use of any tax dollars or resources to be used for sectarian schools. It is widely accepted the primary purpose of this amendment was anti-Catholic, since many public schools in the day had no issues incorporating various religious exercises into many aspects of the school day.

The amendment was first proposed by President Ulysses S. Grant, in his final address to Congress. Grant had been a member of the Know Nothing Party, a party known for anti-Catholic, anti-immigration and xenophobic beliefs. The name came from the secret nature of the party (Millard Filmore received over 21% of the vote for president while never admitting he was a member). When asked about what went on in the party, members would say “I know nothing” and the name stuck.

The impetus for the Know Nothing Party, and the nativist movement it embraced was the very large increase in immigrants. Between 1830 and 1840, immigration quadrupled from where it had been in the 1820s. From 1840 to 1850 the number of immigrants tripled. Whereas records suggested roughly 8,000 immigrants in the 1820s, by the 1850s there was almost 2 million immigrants arriving. And many of these immigrants were escaping situations of poverty in Europe for promised riches in the United States. And many of these new immigrants were Catholic.

Consider this language in a law proposed in New York in 1837.  We

“view with deep concern the great influx of Roman Catholics into this country from the various nations of Europe, and their admission to citizenship while they retain their principles, as eminently threatening our civil and religious liberties. Dr. Robertson in his history of Scotland, says of Popery that it “prepares and breaks the mind for political servitude”-that it is “a system of superstition which is the firmest foundation of civil tyranny”-“a religion, whose very spirit as well as practice is persecuting, sanguinary and encroaching.”

The view was Roman Catholics were dangerous to democracy. Catholics were unfit to be citizens because they would persecute Americans, cause bloodshed and steal. The primary identity of the United States was as a Protestant, Christian nation. Public schools at this time reflected a promotion of Protestantism. The teaching of subjects considered non-religious were intertwined with a Protestant ethic in books such as the McGuffey Readers.

The increased flow of immigrants continued. So when President Grant proposed barring public money for sectarian schools, he found a lot of support. Immediately after proposing to limit funding of sectarian schools with public monies, Rep. Blaine proposed the amendment. While it did not pass the Senate, and so was not sent to the states, many states, especially west of the Mississippi added the Blaine Amendment to their constitutions.

Chipping Away at Blaine

The difference between the Establishment Clause, often referred to as the Separation of Church and State, and the Blaine Amendment can be seen in purpose and in practice. The purpose of the Establishment Clause could be seen not as a statement to protect government from the intrusion of religion, but rather, to protect religion from the intrusion of government. Those who arrived to the colonies from Europe were escaping religious persecution by the state, and so wanted to ensure such persecution could not continue in the colonies.

The Blaine Amendment was focused on preventing money from the government from going to sectarian, largely Catholic schools. The issue was not a concern about a strict separation of Church and State, since the reading of the Bible in schools, as well as the prevalence of prayers was common.

And so, starting in 1947, the courts began to focus more on what was for public benefit and what constituted direct aid to schools. In Everson v. Board of Education (1947), the Supreme Court ruled that Catholic schools had some public benefit, and the reimbursement of parents for transportation to these schools did not violate the separation of Church and State.

This public benefit idea also allowed for the use of state funded textbooks, special education to be conducted in sectarian schools, and most notably, in 2002, in Zelman v. Simmons-Harris, the Supreme Court upheld an Ohio law which allowed parents to use state dollars to choose to send their children to any school of their choice, even religious or sectarian ones.

Moreover, some would argue the Blaine Amendment forbid government money to go to schools but did not prevent government money to be given to individuals, such as parents to use as they judged best. In the latter interpretation, it is the parent, not the state, that is directing where the money goes. Importantly, then, it is not entangling the government in sectarian funding.

The Montana Case

So, how does the Montana case fit in this brief analysis? First, it is important to note that this financial grant could be considered indirect aid. It is money given not to the school per se but is rather given to parents to use as they decide. Does this make a difference? Well, using the reasoning in Zelman, it might. This money could is somewhat similar to Pell Grants that the individual could use to attend a sectarian university.

This indirect aid could be viewed like Medicare is viewed as being used in Catholic hospitals, or even more indirect, the role of the fire department to fight a fire or the police department to investigate a crime even if it occurs on religious property.

At the same time, the Court could uphold the Montana Supreme Court decision. The money given allows more people to be in sectarian schools, which might provide more economic benefit for schools that do in fact see their existence as helping members of a religious sect to grow in their faith. And while there are numerous court cases that would uphold religious schools having a public benefit, there is the long held notion that the state has an obligation to provide a free and appropriate public education. While religious schools can fulfill the requirement for children to be in school, it could be argued the state fulfills its obligation as long as it makes public education available.

Our hope

To be honest, I have mixed feeling about government funding of religious schools. On the one hand, since I believe parents are the primary educators of their children, then as citizens of the United States their desire and choice to send their children to a religious school should be made possible.

However, there is always a double-edged sword that comes with government funding, and that concerns the conditions that could be attached to the acceptance of government dollars. Would this mean that schools would have to accept any student that comes to the school with state money? Could the states require educational programs that violate the precepts of personal belief in a particular religion? Was it not this very reason that caused Catholic schools to begin in the United States?

What does seem clear to me is that the blatant anti-Catholic bigotry that is embodied in Blaine amendments and state constitutions should be struck down. That Blaine is an expression of anti-Catholic bigotry is not simply my opinion but has been upheld by most historians and even government decisions. Moreover, the hostile anti-Catholic language can be seen in the way we speak about Muslims, Hispanics, and others who seek to come to the United States. The bigotry that applied to Catholics does not become right if it is directed at those people from other faiths and countries.

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