The issue of government funding of private, religious schools has been contentious since these schools first began opening up en masse in the 19th century. By that time, the separation of church and state was based in history and had been upheld multiple times in the Supreme Court. Regardless, countless lawsuits against local and state governments for funding or defunding religious schools constantly occurred throughout American history.
Most recently, on June 30, 2020, the Supreme Court of the United States announced a decision regarding Espinoza v. Montana, a lawsuit started by three families with children enrolled in religious schools. They wanted to restart a canceled state scholarship program that gave tax credits to donors who contributed money to private-school scholarships. The Supreme Court of Montana ruled 5-2 that the entire program was unconstitutional at the state level because it helped fund private, religious schools. Until that point, the state of Montana had only sought to appeal an injunction forcing its Department of Revenue to provide scholarships to students enrolled in religious schools. The Montana Supreme Court’s decision to scrap the program in its entirety to avoid supporting religious schools was questionable, inspiring the Institute for Justice law firm to represent the three families in their lawsuit all the way to the Supreme Court.
Throughout the country, state constitutions have what are known as “Blaine Amendments” in their text. The Blaine Amendment was first proposed in the late 19th century as a U.S. constitutional amendment. This amendment was meant to prohibit all government aid to educational institutions with religious affiliations but did not have sufficient support at the national level for its implementation. Instead, this amendment was adopted into the state constitution of 38 different states, further exercising the separation of church and state that many found necessary.
The separation of church and state was vital to uphold to protect both the religious and non-religious. However, many argued that the Blaine Amendment was a step too far, bent on discriminating against religious education rather than protecting the non-religious. Evidence for this comes from anti-religious and anti-immigrant groups intent on defunding religious schools throughout the 19th century. The Supreme Court argued that the Blaine Amendment “barred religious schools from public benefits solely because of the religious character of the schools” in Chief Justice Roberts’ majority opinion in Espinoza v. Montana (2020).
An important distinction on the impact of this decision comes from another section of Justice Roberts’ opinion. “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.” The 5-4 conservative majority agreed that this case was an example of religious discrimination. At the same time, the liberal wing of the court argued that overturning the Blaine Amendment as a whole nationwide was a step too far and that the Montana Supreme Court’s decision to abolish the scholarship program was the correct decision.
Throughout the country, countless Americans believe that the separation of church and state has allowed for local and state governments to practice religious discrimination unofficially. Espinoza v. Montana was an example of a state’s willingness to abolish a public good altogether to avoid granting power to religious institutions. Throughout the United States, 17 states have scholarship programs similar to Montana’s that prohibit contributions to religious schools as part of the private school scholarships. Many consider these programs to be at risk in the foreseeable future due to the recent decision on Espinoza v. Montana.
Supporters of school choice programs have praised the Supreme Court decision. Supreme Court decisions tend to be narrow in scope, so while religious schools will be allowed to receive private scholarship money, there are still various legal battles to be fought over other instances involving the separation of church and state.