In Trinity Lutheran v. Comer (2017), the justices took aim at Missouri’s Blaine amendment, which the state had invoked to withhold funding for a church-run school. By 7-2, the justices deemed Missouri’s denial a First Amendment violation because “Trinity Lutheran was denied a grant simply because of what it is—a church.” But the court focused on the discriminatory impact of the specific case, rather than the discriminatory intent of the Blaine amendment.
Espinoza involves a scholarship program the Montana Legislature created in 2015 to promote school choice. The state offered a $150 tax credit for donations to nonprofits that award scholarships to students attending any private ‘“qualified education provider,” a definition that initially included religious schools. But the law conflicted with Montana’s Blaine amendment, which bars “any direct or indirect” funding to religious schools. The state Department of Revenue redefined “qualified education provider” to exclude religious schools. That exclusion triggered a set of lawsuits arguing that the modified rule violated the First Amendment—a strong argument given Trinity Lutheran.
Then the legal fight took a strange turn. The Montana Supreme Court held that the program could not support institutions providing scholarships to religious schools. But it also found that the Department of Revenue lacked the authority to modify the program to exclude religious schools. Because the law authorized what the state constitution prohibited—funding religious schools—the entire law had to be struck down. That meant no private school received funding.
As a result, the law that discriminated against religious schools is off the books. Thus the most natural application of U.S. Supreme Court precedent—that a state may not exclude a religious institution simply because of “what it is”—does not easily apply. Given this peculiar posture, how might the justices decide the case?
Opinion: Discrimination Without Discriminating?
The Supreme Court next week will hear another challenge to an anti-Catholic law. #1A #Blaine #conlaw
via @MAHelfand @WSJ @howappealing https://t.co/JLyrWlyBl8
— Tom Collins (@azcleanelexexec) January 17, 2020