Sunday, April 8, 2018

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.

5 comments:

Anonymous said...

This country has long been victim of the scope of the Blaine Amendment and its adoption to the majority of state constitutions but it is quite possible that this could end very soon in a legal sense. Overall though I do understand the need to create these sort of laws to prevent religiously minded state representatives from using their power to promote religion throughout the state. I do imagine the Blaine amendment to be given rigorous questioning during a Supreme Court hearing however I don't see it being entirely overturned even though it has a past of strict specific anti religious minority discrimination. Overall I lean towards the Blaine amendment being unconstitutional but this might not be the best argument in favor of repealing it.

Anonymous said...

As we have seen recently the Blaine Amendments across the country are going to be continually challenged after the decision of Trinity Church v. Lutheran. But for the Blaine Amendments to be officially deemed unconstitutional, I believe there will need to be a case in which the Supreme Court focuses on only the Blaine Amendments and determines if they are hostile to religion. Based on the current court I believe that the Blaine Amendments could be deemed unconstitutional because of their potential to be "hostile" or lack neutrality in the treatment of religion.

Anonymous said...

I believe that the fact that the scholarship program does not allow the choice of religious or non religious schools indicates that it is not neutral toward religion, but rather hostile. To not allow the parent to choose a religious school promotes secularism over religion, establishing a preference over sectarian education. Furthermore this could be as restrictive to the Free Exercise of the individual who can not receive a religious education due to their inability to pay without the scholarship program.

Brian B said...

I agree with your stance and really appreciated the David Blaine reference. The Blaine Amendment was clearly created to target Catholic education, given Blaine's views and the time period. I feel it is about time for states to repeal the Blaine Amendment due to its hostile intent. Historically, in cases such as Everson v. Board of Education, and Trinity v. Lutheran, SCOTUS has taken the stance of neutrality. I find this case no different. Espinoza has a compelling reason to send her children to a parochial and should not be financially punished, based on a hostile law.

Andrew C. said...

Sean, as much as I appreciate your David Blaine reference and title that would make even Dr. Seuss proud, I also strongly side with your opinion in this matter. The Blaine Amendment was evidently crafted with the sole intention of targeting Catholic education and creating hostility between religion and the state rather than creating a clear separation. While the United States has duty of preventing an establishment of religion within the state, it also holds the duty of preventing hostility against religion and thus the Blaine Amendment should be repealed upon presentation to the Supreme Court. While Espinoza’s case duly elicits sympathy for those affected by the Blaine Amendment, it should be repealed in general for its inimical nature.