Photo by Claire Anderson on Unsplash


Moms vs. Bigoted Blaine

Kendra Espinoza is a single mom with two daughters. Both her daughters transferred out of public school and into a Christian school. Kendra’s youngest daughter struggled to succeed in her public school. Her oldest daughter experienced teasing and occasional bullying from her public school classmates. Kendra also wanted her girls in a school that taught the same Christian values she taught at home.

To give her daughters the best education possible, Kendra works three jobs to pay tuition. During the day, she works full-time as an office assistant. At night, she works two other jobs as a janitor. To further raise money to pay tuition, Kendra has raffled off items and held yard sales. All the while, her daughters have taken up odd jobs to ease the financial burden.

It should come as no surprise that Kendra was excited at the prospect of scholarship assistance after the Montana Legislature passed scholarship tax credit legislation in 2015.

Montana’s scholarship tax credit legislation allows donors to receive an extremely modest tax credit of up to $150 for donating to a scholarship organization. While the scholarships can be used for any student hoping to attend a parochial or private school, only one scholarship organization—Big Sky—has been created to serve students. Notably, Big Sky has focused their efforts on families who have children with disabilities or families who experience financial difficulties. In other words, Big Sky was formed to serve families like Kendra’s.

Unfortunately, shortly after the Montana scholarship tax credit program was established, the Montana Department of Revenue (“Department”) issued a ruling that prohibited families from using scholarship funds at a religious school. The Department cited their state constitution’s “Blaine Amendment” which prevents the state from using any direct or indirect public funding for sectarian purposes or to aid religious schools or religious institutions.

Kendra and two other moms filed a lawsuit against the Department. They claimed that the Department’s ruling—and the underlying Blaine Amendment—violated their rights under the U.S. Constitution. Specifically, they argued that the ruling violated the Free Exercise Clause and Establishment Clause of the 1st Amendment and violated the Equal Protection Clause of the 14th Amendment.

The three moms were initially successful at the trial court level. But the Montana Supreme Court ultimately overturned the trial court, claiming that the Blaine Amendment did not violate their constitutional rights.

Dissatisfied, the moms appealed to the Supreme Court of the United States (“SCOTUS”). SCOTUS has taken their case and will decide it sometime before July 2020.

Over the past few months, legal briefs have been filed by the two sides in the litigation. As well, numerous organizations and interest groups (called “friends of the court”) have filed briefs either in support of or opposition to the moms.

In the coming months, SCOTUS will hear oral arguments and allow both sides to make their case before the justices.

Espinoza v. Montana Department of Revenue is anticipated to be one for the history books, as it has the potential to have far-reaching implications for nearly 40 states around the country that have Blaine Amendments in their state constitution.

The legal question for SCOTUS is whether it is unconstitutional “to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.” In short, is it unconstitutional to discriminate against religious believers or institutions from otherwise receiving funds that other people or institutions may generally access?

As Chief Justice John Roberts wrote in a major religious freedom case (Trinity Lutheran v. Comer) last year: a policy that “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character… triggers the most exacting scrutiny.” And, in that case, the exacting scrutiny triggered was the death nail in a funding program that discriminated against a religious school from receiving state grant funding to create a safer playground for its kids.

The hope is that Chief Justice Roberts & Co. will apply similar reasoning to Espinoza and vindicate Kendra and other families like hers. And, in doing so, SCOTUS can finally toll the bell for bigoted Blaine Amendments that not only haunt our political history but also suppress religious freedom throughout our country.

But more on Blaine Amendments and their bigoted history in my next column—stay tuned!

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