Today, the Supreme Court held in Espinoza v. Montana Department of Revenue that, under the Free Exercise Clause, if a state has a program giving public dollars to citizens to use at private schools, it cannot tell those citizens that the money can only be used at non-religious private schools. Montana had decided that its scholarship program funds could not be used at religious schools under the state's Blaine Amendment, a legacy of a failed anti-Catholic amendment to the U.S. Constitution. Many First Amendment advocates hope this opinion proves to be a fatal blow to the discriminatory anti-religious Blaine Amendments still found in many state constitutions.
The Department of Justice filed an amicus brief in the case supporting the citizens who wished to help their children attend a private Christian school and was given time during oral argument. Attorney General Bill Barr issued a statement praising the Court's decision:
We are pleased with the Supreme Court’s decision today in Espinoza v. Montana Department of Revenue. Montana’s Blaine Amendment excluded religious schools from state scholarship programs that are open to other educational institutions. It thus prevented parents who send their children to religious schools from receiving scholarship funds that are available to the rest of the community.
The Supreme Court concluded today that Montana’s Blaine Amendment violates the Free Exercise Clause of the First Amendment. The Court recognized that the Free Exercise Clause “condemns discrimination against religious schools and the families whose children attend them.” As a result of the Court’s decision, a state may no longer disqualify religious schools from scholarships or other programs “solely because they are religious.”
The Court’s decision represents an important victory for religious liberty and religious equality in the United States. As the Court explained, religious people are “members of the community too,” and their exclusion from public programs because of their religion is “odious to our Constitution” and “cannot stand.” We were pleased to see the Court agree with the Trump Administration that such blatant discrimination against religion has no place in our constitutional system.
The White House also issued a statement:
Laws that condition public benefits, like need-based academic scholarships, on religious status demonstrate state-sanctioned hostility to religion, pressure people and institutions to censor their religious views, and stigmatize disfavored religions.
Chief Justice Roberts wrote for the Court. Justice Alito wrote a concurrence noting the anti-Catholic bias embodied in the Blaine Amendment. Justice Gorsuch wrote a concurrence to explore the distinction between discrimination based on religious status and religious use, though he notes that both are unconstitutional. Justices Thomas and Gorsuch concurred to note that the Court's confusing Establishment Clause jurisprudence continues to press states to ignore the Free Exercise Clause, making state and local governments favor some fundamental constitutional rights above others (internal citations omitted):
The Court’s current understanding of the Establishment Clause actually thwarts, rather than promotes, equal treatment of religion. Under a proper understanding of the Establishment Clause, robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level. The Court’s distorted view of the Establishment Clause, however, removes the entire subject of religion from the realm of permissible governmental activity, instead mandating strict separation.
This interpretation of the Establishment Clause operates as a type of content-based restriction on the government. The Court has interpreted the Free Speech Clause to prohibit content-based restrictions because they “value some forms of speech over others,” thus tending to “tilt public debate in a preferred direction.” The content-based restriction imposed by this Court’s Establishment Clause jurisprudence operates no differently. It communicates a message that religion is dangerous and in need of policing, which in turn has the effect of tilting society in favor of devaluing religion.
Today's decision, following on Trinity Lutheran a few years ago, is an encouraging sign that the Court is starting to recognize that an energetic Free Exercise Clause is equally important to the Establishment Clause in protecting the religious liberty guaranteed by the First Amendment.