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The U.S. Supreme Court hears arguments Wednesday in a major case that could dramatically alter the line separating church and state.

At issue is a Montana state constitutional amendment that bars direct and indirect taxpayer aid to religious institutions. Conservative religious groups and advocates of school choice are challenging the "no-aid" provision.

They have long sought to invalidate state constitutional amendments that prohibit taxpayer funding from going to religious schools. Given that Montana is one of 38 states with a "no-aid" provision, the court's eventual decision could have far-reaching consequences.

The case began in 2015 when the Montana Legislature passed a bill providing a dollar-for-dollar tax credit for individuals who donate to organizations that provide scholarship money to students in private schools. An organization called Big Sky began raising money to fund these scholarships, using the tax credit as an incentive. Of the 13 schools that got scholarship money from Big Sky, 12 were religious schools. Indeed, 70 percent of all private schools in Montana are religiously affiliated.

Ultimately, the Montana Supreme Court struck down the entire tax credit program for all private schools, religious and nonreligious alike. It said the tax credit conflicted with the state constitution, which bars all state aid for religious education, whether direct or indirect, like a tax subsidy.

School choice advocates are now asking the U.S. Supreme Court to revive the scholarship aid program in its entirety. They are backed by the Trump administration, including Education Secretary Betsy DeVos who as a private citizen and as a Cabinet member has advocated for what she recently called "faith-based education."

Kendra Espinoza, the lead plaintiff in the case, has two daughters attending the Stillwater Christian School in Kalispell, Mont. She is an office manager and staff accountant, who works extra jobs in order to pay for her children's tuition.

"I wanted my kids to have a really strong sense of right and wrong from a biblical perspective," Espinoza said of her decision to send her children to a religious school. "I want them to understand that our sense of ethics and our morals come from God's word, not just man's ideas."

"The only reason" the Montana Supreme Court invalidated the tax program "was because it included religious schools," maintains Erica Smith, a senior attorney at the Institute for Justice, which for decades has been fighting to get rid of state constitutional provisions like the one in Montana.

She argues that the federal constitution's guarantee of equal protection of the law mandates that the tax-credit program be revived and applied equally to all private schools, religious and non-religious alike. "Once you have these programs," Smith says, "you have to treat families going to religious schools equal to families going to non-religious schools."

The state of Montana, however, disagrees. It defends the state constitutional provision barring direct or indirect state aid, like tax credits, for religious education.

At the heart of the case are what opponents of these "no-aid" provisions call "baby Blaine Amendments," named after James G. Blaine, who introduced a similar amendment to the federal constitution in Congress in 1875. While the original Blaine amendment failed to pass, variations of it were adopted in most states. Many scholars today view the adoption of these amendments, mostly in the late 1800s, as a bigoted reaction to the mass immigration of Catholics into the U.S.

Lawyers for Espinoza argue that the Montana amendment, which was originally adopted in the late 1800s, was "born of" bigotry against Catholics and therefore that the state's "no-aid" provision discriminates against religion in violation of the federal constitution.

Smith notes that these "baby Blaine Amendments" have never been squarely challenged in the Supreme Court before, but she hopes that "the court will take the opportunity to end the bigotry behind these Blaine amendments."

The Montana constitutional amendment, however, is not some relic of the past. Though the no-aid provision was originally adopted in 1889, the state constitution was revised and rewritten in 1972.

All but one of the surviving delegates to that convention have submitted a brief in this case discussing how the "no-aid" provision was debated and enacted 48 years ago.

They dispute Smith's claim that the 1972 convention's "no-aid" provision was just a rubber stamp of the 1889 provision.

"There was clearly some interest being expressed on behalf of the parochial schools to open up the no-aid provision," recalls Mae Nan Ellingson, one of the delegates. She says a daylong hearing was held, with some 100 witnesses presenting written and oral testimony. Following the hearing, "the debate at the convention" on the "no-aid" provision "was extensive," she says.

Ellingson notes that "a number of ministers" who were convention delegates "spoke very ardently in favor of public funds 

 going to religious education." Indeed, Montana argues that the delegates to its 1972 constitutional convention adopted the "no-aid" amendment in part "to protect religious liberty" and to prevent the state from attaching conditions to its aid.

In the end, the 1972 constitutional redo passed by a vote of 80-to-17. During the ratification campaign that followed, Ellingson says, the "no-aid" provision was "never even a threshold issue." And she notes that the no-aid measure included a provision specifically allowing private religious schools to receive available federal funds through a state pass-through mechanism.

Ellingson sees Wednesday's Supreme Court argument in terms of the powers delegated to the states by the federal constitution, including the power of the states to decide how to finance education. If Espinoza wins, she says, it would mean states no longer "have the right to determine how public funds are used."

In recent years, as the Supreme Court has grown more and more conservative, it has moved with increasing vigor away from the notion of a strict wall of separation between church and state, and toward a greater accommodation of religion. It has, for instance, allowed states to provide vouchers to parents for use in both religious and non-religious private schools.

But there is a difference between allowing and requiring. This case moves that debate a huge step further, according to Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief.

"In the past, the court, echoing the framers of the constitution, guarded against government-funded religion," says Mach. "Now the court is actually considering not only allowing but forcing taxpayers to subsidize religious activities."

The question in Wednesday's case, then, is not whether a state may, if it wishes, provide such aid to private religious schools, but whether it must. 

Religion and Faith

Nina Totenberg

Author

For the first time, the high court will rule on "no-aid" state constitutional provisions that conservative religious groups and school-choice advocates have long sought to invalidate.

Supreme Court considers religious schools case

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