U.S. Supreme Court rules application of Blaine Amendment violates the free exercise clause

The U.S. Supreme Court ruled in Espinoza v. Montana Department of Revenue that the application of Article X, Section 6 of the Montana Constitution violated the free exercise clause of the U.S. Constitution. Article X, Section 6, known as the state’s Blaine Amendment or as a no aid provision, prohibited the state from making direct or indirect public fund payments to religious schools.

The case concerned whether the government can exclude religious institutions from student-aid programs and addressed the tension between the free exercise and Establishment Clauses of the U.S. Constitution—where one guarantees the right of individuals free exercise of religion and the other guarantees that the state won’t establish a religion—and the intersections of state constitutions with state law and with the U.S. Constitution.

A 2015 Montana law established a tax credit scholarship program that matched—up to $150 a year—taxpayer donations to organizations that issued scholarships for private school students. To ensure compliance with the Montana Constitution, the state Department of Revenue established Rule 1, which barred recipients from using the scholarships at religiously-affiliated private schools. The plaintiffs, three mothers whose children attended religious-affiliated private schools, challenged Rule 1. The Montana 11th Judicial District granted summary judgment to the plaintiffs, prohibiting the rule’s enforcement. On appeal, the Montana Supreme Court reversed the 11th Judicial District’s ruling, holding the law violated the state constitution’s Blaine Amendment.

The U.S. Supreme Court reversed and remanded the Montana Supreme Court’s ruling in a 5-4 opinion, holding Article X, Section 6 violated the free exercise clause by barring religious schools and parents who wished to send their children to those schools from receiving public benefits because of the religious character of the school.

Chief Justice John Roberts delivered the majority opinion. Justice Clarence Thomas filed a concurring opinion, joined by Justice Neil Gorsuch. Justices Samuel Alito and Gorsuch each filed separate concurring opinions. Justice Ruth Bader Ginsburg dissented, joined by Justice Elena Kagan. Justice Stephen Breyer also dissented, joined by Justice Kagan as to Part I. Justice Sonia Sotomayor also filed a dissenting opinion.

Blaine Amendments refer to language in state constitutions that prohibit public funding for schools or educational institutions run by religious organizations. Blaine Amendments were added to the state constitutions of 38 states. Louisiana’s amendment was repealed in 1974, leaving 37 states with Blaine Amendments in their constitutions as of 2020.

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