Blaine, Maine, and Montana Plains

One of the most hotly contested issues today is education.  This past week saw Oklahoma teachers engage on a 110-mile trek to our nations capital to protest a lack of educational funding.  Around 1,500 miles north of Oklahoma in Helena, Montana, another battle rages on the grounds of educational funding, but with an added religious twist.

Kendra Espinoza is a single mother of two who sends her daughters to Stillwater Christian School.  She made the decision to switch to religious private school after her daughters were mocked for their Christian faith at their old public school.  On her limited income, she relies on financial aid provided by the school but has trouble making ends meet.

She, along with two other moms, and the Institute for Justice recently brought suit against the Montana Department of Revenue.  They are contesting restrictions on a statewide, tax-funded scholarship program passed by the Montana legislature in 2015.  After the legislation passed, the Department adopted an additional rule to the legislation requiring that the scholarships be used at non-religious private schools.

According to the Montana Department of Revenue, the original legislation ignored Montana's Blaine Amendment, which disallows the use of public funds to directly or indirectly aid religious schools.  "Blaine Amendments," popularized by former Maine representative, James Blaine, are found today in 37 state constitutions.  They are laws that prohibit state funding of sectarian schools.  State Blaine Amendments developed from a proposed federal amendment that was brought to congress in 1875.  The federal amendment never passed but many state legislatures adopted similar laws into their state constitutions.

Blaine Amendments were created during a time of anti-Catholic and anti-Mormon fervor and are often contested for their discriminatory nature.  Blaine, before taking the amendment to the federal level, won overwhelming support in his, largely protestant, home state of Maine for quashing the scourge of Catholic education. Proponents of the amendments believe that they create a critical barrier between church and state.  Additionally, Blaine Amendments clear up the confusing distinction between direct and indirect funding of religious education as they prohibit both.

Espinoza vs. Montana Department of Revenue commenced only days ago in the Montana Capitol of Helena.  It's result in Montana's Supreme Court will surely be interesting but a substantial likelihood exists, especially if Espinoza loses, that the case will be heard in the federal Supreme Court.  The case will attempt to answer the question of whether or not Montana's Blaine Amendment violates Espinoza's free exercise of religion.

If the case does reach SCOTUS, I believe that the court will side with Espinoza, and further, will challenge the constitutionality of all Blaine Amendments.

The main constitutional problem with Montana's amendment is it's negation of neutrality towards religion.  The law very clearly targets parochial schools on the sole basis of their religious affiliation.  Historically, neutrality is the standard set by SCOTUS.  In Everson vs. Board of Education, the court held that state-funded bussing for religious schools is constitutional because the bussing, in itself, held no religious function and provided a neutral benefit to students attending all schools, religious and secular.

Espinoza's constitutional advantage doesn't stop there, however.  Another very similar case was heard by the Supreme Court in Zelman vs. Simmons-Harris.  In the case, SCOTUS held an Ohio school voucher program, which allowed parents to pick from religious or non-religious schools, to be constitutional.  Again, the deciding factor in the 5-4 decision was the neutral nature of the program.  Chief Justice Rehnquist noted in his majority decision that the "Ohio program is entirely neutral with respect to religion... it permits individuals to exercise genuine choice among options private and public, secular and religious."

SCOTUS, if given the chance, will not only rule in favor of Espinoza, but I believe, will call into question the constitutionality of all State Blaine Amendments.  Religious education, for many minority religious sects, is of extreme importance.  Withholding a publicly offered scholarship solely because of the schools sectarian affiliation shows blatant hostility of the State towards religion and burdens the free exercise of cash-strapped parents who want their children to lead spiritual lives.  These issues mixed with the discriminatory nature of the amendments' founding puts them on a preverbal chopping block.

This case could cause Blaine Amendments to follow the lead of their magician namesake and make a disappearing act, once and for all.