Supreme Court has chance to strike bipartisan blow against anti-religious discrimination

Originally published on
by Brad Polumbo

On Wednesday, the Supreme Court will hear a case that has somewhat flown under the radar but has massive implications.

The ruling the court hands down in Espinoza v. Montana Department of Revenue may establish once and for all whether states should be free to exclude religious organizations from government programs. There’s no reason that both liberal and conservative justices can’t take this opportunity to come together in support of equality for all, religious liberty, and educational freedom.

The case concerns a Montana program granting $150 in tax credits to those who donate to help fund private school tuition scholarships. Single mother Kendra Espinoza sought to use the scholarship program to send her children to a private religious school. A state agency excluded religious schools from the program, citing an archaic “Blaine amendment” in the state constitution that bars taxpayer dollars from going to religious organizations. The Montana Supreme Court upheld this backward decision.

This is foolish. The state has no right to discriminate arbitrarily against religious schools, and it sure seems like a blatant violation of the Constitution’s equal protection clause, which bars government discrimination. As Nicole Russell explained in these pages, the history of Blaine amendments is “steeped in bigotry.”

And no, allowing taxpayer dollars to subsidize education indirectly at a religious school doesn’t violate the “separation of church and state.” In fact, those words appear nowhere in the Constitution. The First Amendment does, of course, bar the government from establishing a formal religion, through the establishment clause. But treating all schools equally by allowing secular and religious organizations alike to participate in the scholarship program in no way would establish a state religion. If anything, the status quo does, by establishing atheism or agnosticism as the state religion.

The conservative majority on the Supreme Court ought to see this.

There’s promising precedent: In a 2017 case, the court ruled 7 to 2 that it was unconstitutional to bar churches from secular government aid programs that subsidized the construction of playgrounds. This was a narrow ruling in scope and did not lay down a marker against government discrimination, but it does provide hope that the justices will remedy the situation definitively this time around.

It’s possible that this ruling can be bipartisan. Even the liberal-leaning editorial board of the Washington Post came out in favor of the Espinozas, writing: “That some families choose to use the scholarships at religious schools is their right and, contrary to many of the tropes advanced by those opposed to school choice, doesn’t undermine public education or harm the state.” In taking this stance, the paper is more or less siding with conservative and libertarian legal activists.

Good for the Washington Post and other fair-minded liberals open to reason on this issue. Let’s hope the justices of the Supreme Court, liberal and conservative alike, show similar sensibility in this case and settle the issue once and for all.