Let’s play a game beloved by judges and lawyers: Dueling Hypotheticals.
HYPOTHETICAL ONE: In 1889, Congress offers statehood to an American territory, but only on condition that its constitution will set up public schools “free from sectarian control.” It promises to do so, and Montana is born. Nearly a century later, in 1972, a citizens’ convention comes together to write a new constitution. The delegates debate whether to retain the “sectarian control” language—or, as it is known, the “no aid” provision—which forbids the payment of state funds to any school or other institution “controlled in whole or in part by any church, sect, or denomination.”
One delegate, a Protestant pastor, leads the forces that want to keep it. Why? He admits that, by its language, it appears to penalize Catholics. But it’s now the 20th century, he says, and Catholics aren’t persecuted in Montana. The pastor, and many religious people like him, support the provision as a way of keeping government out of religious affairs. Catholic delegates take part in the debates, and various religious officials are consulted. The convention then amends the provision to make clear that federal funds intended for schools generally are not covered by the ban; even if they are distributed by the state government, federal funds can flow to religious schools on an equal basis. As a compromise, the new measure attracts the votes of Catholic and Protestant delegates.
HYPOTHETICAL TWO: A presidential candidate tells the public that “Islam hates us” and promises “a total and complete shutdown of Muslims entering the United States.” When he becomes president, he immediately issues an executive order barring entry of refugees from seven predominantly Muslim countries (unless, that is, they aren’t Muslims). When that ban is struck down by a lower court, he immediately issues a new one with the same basic shape. When that too is struck down, he issues a third one, still targeting Muslim countries but including the Venezuelan cabinet and North Koreans. A year later, he begins hinting that he is not done—he will soon promulgate a new, even broader travel ban.
Which of these two hypothetical government actions is “certainly rooted in grotesque religious bigotry”?
If you guessed the travel ban, the Supreme Court’s new conservative majority disagrees. In Trump v. Hawaii, they all voted for an opinion that said President Donald Trump’s order was “neutral on its face, addressing a matter within the core of executive responsibility,” and that it could be enforced regardless of his statements.
But for Montana, to hear conservative justices tell it, the sin of religious bigotry is the mark of Cain, a stain that can never be completely washed out. The state’s educational system must be changed at once to atone for the 1889 no-aid provision. In fact, its guilt is so profound that it must revive a defunct school-scholarship program that included religious schools.
That is the heart of a case argued before the Supreme Court last week, Espinoza v. Montana Department of State Revenue. The relevant passage of the state’s 1972 constitution—Article X § 6—reads:
(1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.
(2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.
In 2015, the Montana legislature created a tuition tax-credit program that allowed taxpayers a small tax credit for contributions to a “school-tuition organization,” which would provide partial scholarships to selected students at elementary and secondary schools. As passed by the legislature, Montana’s program was not limited to nonreligious schools. But the state department of education, required by law to comply with the Montana state constitution, issued a regulation forbidding the use of tax-credit-funded scholarships at schools run by “a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination [or an employee of such an institution].”
A group of parents whose children had been eligible for grants to attend religious schools brought suit in state courts. At the state level, their main argument was that the program didn’t violate the Montana Constitution at all—it was aid to students, not to churches or schools. And, the parents continued, if the state’s highest court said the provision violated the state constitution, that application would violate the U.S. Constitution’s free-exercise and equal-protection clauses.
But would it? There are suggestive precedents on both sides of the argument. In 2004, the Supreme Court, in an opinion by then Chief Justice William Rehnquist, held that the state of Washington could rely on such a provision to refuse scholarship funds to a student who wished to study for the ministry at a religious college. Then, in 2017, under Chief Justice John Roberts, the Court told Missouri it could not rely on a similar provision to refuse to allocate money to a church day care under a general program funding rubberized surfaces for children’s playgrounds.
The Montana Supreme Court opinion, however, didn’t grapple with those precedents. Instead, the court first asked whether the law itself was constitutional under the state constitution. It concluded that the statute did violate the state no-aid provision. Therefore, the program was unconstitutional altogether, and nobody would get the vouchers. For the majority, the federal constitutional issues didn’t arise, because the program was invalid in the first place.
At this point the case became, well, profoundly weird. After the decision, there was no program for any students, because the legislation violated the Montana Constitution. But this is how the challengers’ lawyer, Richard D. Komer, of the Institute for Justice, began his argument: “This case asks whether the federal Constitution allows for the wholesale exclusion of religious schools from scholarship programs.” The injury suffered by his clients, Komer insisted, was “discrimination” from “the judgment of the Montana Supreme Court, which considered a federal question, which led to the invalidation of the program.”
That’s an odd claim of injury. The judgment before the Court is that there is no program for anyone; it is far from clear that there is any case left. In a 2011 case challenging a nearly identical program in Arizona that did include religious schools, the Court held that secular parents had no right to challenge the inclusion of religious schools. Now the Court seems to be recognizing a mirror-image case—a special-standing rule for religious claimants.
Additionally, under the Montana decision, religious and secular schools have been treated in exactly the same way. Rehnquist once explained that indigent women needing abortions could be excluded from a federal health-care program: “These Title X clients are in no worse position than if Congress had never enacted Title X.” It’s not clear to me why the same logic doesn’t apply here.
The conservative justices at oral argument, however, also seemed to find discrimination. Justice Brett Kavanaugh asked, “Suppose the state said, ‘We’re going to allow the scholarship funds to be used for secular schools or Protestant schools but not for Jewish schools’? Unconstitutional? … So what’s different when you say the scholarship funds can be used for secular schools but not for Protestant, Jewish, Catholic, or other religious schools?” Justice Samuel Alito said that the Montana decision was like a scholarship program that is “going mostly to blacks and we don’t like that and that’s contrary to state law. So the state supreme court says, ‘Okay … we’re going to strike down the whole thing.’” Roberts compared it to a racist decision to close public parks and pools, imagining a governing body saying, “If a higher percentage of African Americans come and use the pools, then we are going to shut down the whole thing.”
By this time, the case had become totally unmoored from reality. Justice Ruth Bader Ginsburg rather sharply reminded Komer, the challenger’s lawyer, that “under the Montana judgment, these parents are treated no differently than parents of children who are going to secular private schools, so where is the harm?” Courts, she noted, can “level up” (ordering relief for the challengers) or “level down” (invalidating the entire program). Ginsburg, writing for a unanimous Court, did exactly that in a 2017 case, Sessions v. Morales-Santana, which was a challenge to a citizenship law that allowed some children born to U.S.-citizen mothers abroad to gain citizenship more easily than children of citizen fathers. That law discriminated against men in violation of the equal-protection clause, she said. However, she continued, “this Court is not equipped to grant the relief Morales-Santana seeks” by giving him citizenship through his father; therefore, the statute was unconstitutional and would be struck in its entirety. No one would get the easier path to citizenship.
Kavanaugh himself suggested exactly the same thing in a 2019 case in which the Court stayed a Texas execution because the state allowed Christian and Muslim clerics to accompany prisoners to the death chamber but denied a Buddhist inmate the same accommodation. Because this was religious discrimination, he wrote, “the government ordinarily has its choice of remedy, so long as the remedy ensures equal treatment going forward.” So if a state excludes all advisers, the problem is solved. What is different here?
The real stakes in the case became clear when Komer insisted that Montana’s 1972 constitution contained a “Blaine Amendment.”
Dearly beloved, in religious-freedom law, them’s fightin’ words.
The name refers to James G. Blaine, known to his fellow members of Congress as “the magnetic man,” to his supporters as “the Plumed Knight,” and to his foes as “the continental liar from the state of Maine.” Blaine was by turns speaker of the House, a senator, secretary of state (twice), and an unsuccessful Republican presidential nominee. In 1875, in order to harness anti-Catholic support for his first presidential run, he proposed a constitutional amendment:
No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.
The word sect is the tell. At the time, it meant “Catholic.” For much of the 19th century, public schools in many states were infused with American Protestant culture—in-class reading of the King James Bible, the use of Protestant-themed textbooks, singing of Protestant hymns.
Advocates of this system insisted that it was “nonsectarian.” One abiding faith of many Protestant conservatives is that the public exercise of Protestant Christianity is nonsectarian—and thus doesn’t violate the establishment clause—as long as it doesn’t single out one denomination as its focus. But for Catholics, the King James Bible is not authorized, and the hymns and readings were propaganda for a faith they and their children did not share. As immigration swelled the numbers of Catholics in these states, Catholic leaders asked that either the public schools change their focus or Catholic schools get a share of the public funds. Protestant advocates responded that schools should be nonsectarian—read, Protestant. But the Catholic Bible, or Catholic teacher, was “sectarian,” and had to be excluded.
In 1875, the proposed amendment failed in the Senate and disappeared. But anti-Catholic feeling was a part of Blaine’s coalition throughout his career. His last unsuccessful presidential run was in 1884. Meanwhile, in far-off Helena, the Montana territory had been seeking statehood since 1864; in 1888 a congressional committee recommended statehood for Montana and four other territories, but only if the people of each adopted a statehood constitution that set up a system of public schools “free from sectarian control.” Such “little Blaine Amendments” were eventually adopted, in different forms, by 40 American states, and most remain in force today.
Thus the original sin was, in effect, forced on the territory; and, as we have seen, the provision was debated, amended, and re-adopted by an elected convention in 1972.
I asked Steven K. Green, a law professor at the Willamette University College of Law who specializes in the history of law and religion, for his view of the origin of Montana’s provision. (Green’s 2012 book, The Bible, the School, and the Constitution: The Clash That Shaped Modern Church-State Doctrine, was cited in Espinoza briefs by both sides and mentioned by Montana’s lawyer, Adam Unikowsky, during oral argument.) His answer, over email, was unambiguous:
There is no evidence that the insertion of a no-aid provision in the 1889 and 1972 constitutions was motivated by anti-Catholicism. During the latter part of the nineteenth century, several of Montana’s more prominent political leaders, including its representatives to Congress, were Catholic, and the Catholic Church was far and away the largest denomination in the territory/state. The no-aid provision first appeared in the proposed 1884 constitution written to entice Congress to grant statehood and had support from Catholics and Protestants alike. This was five years before the Enabling Act required incoming states (Montana, Washington, North and South Dakota) to include a no-aid provision as a condition of granting statehood. The no-aid provision in the 1889 constitution, Article XI, section 8, was essentially verbatim of the 1884 provision.
There is no evidence of anti-Catholic animus in the debates for the 1972 constitutional convention. A small number of delegates (three) expressed dissatisfaction with reincorporating the no-aid provision, with one calling it a Blaine Amendment. Other delegates pushed back on that characterization with one responding “I rather think that most of us do not believe that the separation of church and state is an evidence of bigotry.” In the end, those delegates who expressed a concern over the no-aid provision voted for the provision and the constitution. Claims that Montana’s no-aid provisions were motivated by bigotry lack an evidentiary basis and rely chiefly on innuendo.
This is not to say that the no-aid movement in the nation as a whole wasn’t at least in part inspired by anti-Catholicism, and American Catholics vividly remember it as part of a period of persecution. But the case against Montana is weak at best.
To strike down part of a state constitution because of this history raises disturbing questions. First, for all the allegiance conservatives proclaim to “originalism,” can the Court sweep aside the no-aid principle that runs in a straight line back to James Madison, the father of American religious liberty? Second, for all the reverence conservatives profess for “our federalism,” should the Court really disallow a state’s choice not to fund religious activities? Finally, is it a coincidence that the sensitivity to bigotry arises in the context of a long-sought aim of the conservative legal movement—to require states to fund private schools generally, and thus weaken public education?
Let us assume (despite the evidence) that in the 19th century, Montana’s people, in the words of the prophet Ezekiel, did eat the sour grape of anti-Catholicism. Must their children’s children’s children’s teeth now be set on edge?
Should Montana’s be the sin that hath no forgiveness?