In 2020 the Supreme Court of the United States (SCOTUS) will hear Espinoza v. Montana Department of Revenue. Advocates and detractors of private school choice are watching closely. The question before the Court is whether provisions in 37 state constitutions, called Blaine Amendments, violate the U.S. Constitution. Although there is wide variation among Blaine Amendments, the general goal is the same: to prevent government funding from flowing to faith-based institutions. The Espinoza case questions a Montana State Supreme Court’s decision to abolish a tax-credit scholarship program that allowed scholarship recipients to take their money to both public and private schools, including faith-based private schools.
Not all Blaine Amendments are equal: while they all attempt to prevent government money from flowing to faith-based institutions, some states go a step further and prohibit indirect aid—aid that flows first to a parent, for example, who then chooses to take that money to a program sponsored by a faith-based institution.
State and federal courts have also divided in their interpretations of Blaine Amendments: some courts have issued broad interpretations, deciding that families who receive government money for an express purpose (like school tuition scholarships) may not take that money to faith-based institutions. Other courts have interpreted Blaine Amendments more narrowly, arguing that once government money is distributed to families, families can use the money for its proscribed purpose, whether the institution they choose is faith-based or not.
The Espinoza case is not the first time SCOTUS has confronted Blaine Amendments. In 2017 the Court heard Trinity Lutheran Church v. Comer. It considered whether a Missouri state program that reimbursed non-profits for purchasing recycled rubber playground surfaces was right to deny funding to a day-care run by a Lutheran church. SCOTUS held that denying a church an otherwise available public benefit on account of its religious status is a violation of the First Amendment, despite Missouri’s Blaine Amendment.
In its decision the Court carefully refused to apply its finding to other programs, like school vouchers, where funds may also be flow to faith-based institutions. In a footnote, the Court wrote: “[t]his case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”
With the Espinoza case, the Court has a chance to answer the question it left open in Trinity Lutheran. If it rules in favor of the Montana Department of Revenue’s decision to abolish a scholarship program that allowed students to take their scholarship funds to faith-based schools, it will uphold Montana’s Blaine Amendment and 36 others. If it rules in favor of Kendra Espinoza and her children, who used tax-credit scholarships to attend a private Christian school, almost every other state that has a Blaine Amendment will no longer be able to use these particular provisions to prevent government aid from flowing directly or indirectly to faith-based institutions.