On Wednesday, the U.S. Supreme Court took up a case that is poised to have far-reaching effects on religious liberty. At issue are the state laws known as Blaine Amendments, which prohibit the use of government funding to benefit religious schools and other organizations.
These laws have pernicious anti-immigrant origins. The “brown” people targeted in the 1800s were Catholics, Jews, Mormons and Muslims, often labeled “sectarian,” which was code for non-Protestant. They were bullied and discriminated against for their faith and traditions by political parties and associations charged with protecting nativist sentiments.
As with many landmark decisions in our country, change comes through the courage of an individual standing up for those without a voice. In Espinoza v. Montana Department of Revenue, a single mom started with a simple goal: asserting her right to choose the best school for her daughters to thrive.
As she fights for her parental right to choose the best future for her daughters, lead plaintiff Kendra Espinoza joins the front lines to defend prison ministries, low-income and minority children, and students with disabilities or special needs from laws that have caused over a century of discrimination.
The Supreme Court ruling could spell the end of these discriminatory state laws that stand in the way of freedom, and religious liberty advocates nationwide are holding their breath. Blaine Amendments were enacted during a time of extreme anti-immigrant and anti-Catholic prejudice, specifically designed to restrict school choice so that undesirable communities would not be able to retain or share their culture and identity. In the 19th century, this meant keeping Catholic influence out of the predominantly Protestant public schools. Today, Blaine Amendments exist in up to 40 states.
The results have devastated the civil society that serves those who need help the most. Blaine Amendments have recently been leveraged to stop a Florida prison ministry with unmatched success lowering recidivism rates in the state; to keep learning-disabled students from using an Oklahoma state scholarship program to attend religious schools that better meet their needs; to shut down a New Mexico textbook program aimed at improving literacy for schoolchildren in rural areas; and to disqualify a Missouri church school from accessing generally available state grants for resurfacing unsafe playgrounds.
In the Espinoza case, the state of Montana refused to implement a tax credit scholarship program that would allow residents a tax credit for $150 of their contributions to a privately run scholarship program. The state claimed the Blaine Amendment forbids tax credits from benefiting schools run by a “church, sect, or denomination.” Out of fear of indirectly benefiting religion, the Montana Supreme Court last year ruled against the program, hurting low-income families like Espinoza’s who are simply seeking better opportunities, often only offered at religious schools.
Under the leadership of both political parties, the federal government has also adopted this misguided view of the relationship between government and religion. Governments have manipulated the Constitution’s Establishment Clause to make it harder for students, the impoverished and the suffering to have their needs met — forgetting that the separation of church and state exists first to stop the government from co-opting religion. Merely allowing all children equal access to statewide benefits is not unconstitutional. It is a celebration of our right to religious liberty.
Yet nationwide, we have seen that having a cross on the wall while using federal dollars to provide lifesaving services can disqualify you from the public square. Following this logic, the largest group of nonprofit health care providers, which cares for 1 in 7 patients daily, would not exist. Disaster relief services would be slower and less organized because houses of worship — which are consistently on the front lines of recovery — would be denied Federal Emergency Management Agency grants. Immigrants arriving on the border would have no one to house them because Catholic Charities would be forbidden from caring for the needy according to their religious mission.
The highest court in the land could send an important message to Americans nationwide that our natural impulse is not the “cancel culture” we see on Twitter but a pluralistic vision where neighbors who hold different views can come together to celebrate their constitutionally protected freedoms. The Blaine Amendments have marginalized religious people, children with special needs and low-income minorities for too long. It’s time for the Supreme Court to put an end to this discrimination.
María Montserrat Alvarado is the executive director of the Becket Fund for Religious Liberty.
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