In a 5-4 ruling, the U.S. Supreme Court on Tuesday said the 1870s Blaine amendment, which has been used for nearly 150 years to prohibit taxpayer money from going to religious schools, is a relic of "religious bigotry" and barred its use.
Colorado is among the 38 states with what the Court calls "little Blaine amendments" in their constitutions.
The action, which isn't actually an amendment in the U.S. Constitution, was named after then-Speaker of the House James Blaine, a Maine Republican, who introduced it in 1875. The amendment was viewed at the time as anti-Catholic and anti-immigrant, and sought to bar state-paid aid to Catholic or other sectarian schools. The amendment won strong support from the Ku Klux Klan, according to the Court ruling.
While it was adopted by the U.S. House, it failed to gain the two-thirds vote required by the Senate in order to refer it to the states. But that didn't stop states from adopting it, often as a condition of statehood, the Court opinion said. Those states include Colorado, which incorporated it into the state's 1876 Constitution.
Tuesday's case came from Montana and Kendra Espinoza of Kalispell, suing on behalf of her daughters Naomi and Sarah.
In his concurring opinion, Justice Neil Gorsuch wrote that Espinoza is a single mom who works three jobs. She wanted to a use a state-funded tax credit program to keep her daughters enrolled in an accredited religious school.
The Montana program, created by the state legislature in 2015, allowed taxpayers to make donations, in the form of tax credits, to an independent scholarship organization known as Big Sky. The organization would choose scholarship recipients, and then parents would choose where to use those scholarships. According to NPR, 12 of the 13 schools that got scholarship money were private religious schools.
The Montana Supreme Court struck down the tax credit program in 2018 for all private schools, religious or not, stating it would allow state funds to go to religious schools in violation of Blaine. The Montana court ordered the program shut down.
Writing for the conservative majority, Chief Justice John Roberts said, “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.”
Lily Eskelsen Garcia, president of the National Education Association, blasted the ruling Tuesday. "An extreme Supreme Court just joined the far-right effort to undermine one of our country’s most cherished democratic institutions: public education," Eskelsen Garcia said in a statement. "At a time when public schools nationwide already are grappling with protecting and providing for students despite a pandemic and mounting budget shortfalls, the court has made things even worse opening the door for further attacks on state decisions not to fund religious schools. The detrimental impact this decision will have on students throughout this country is shameful and unacceptable."
Pam Benigno of the Colorado-based Independence Institute, which filed an amicus brief on behalf of the plaintiffs, said Tuesday that "for more than three decades, the Independence Institute has held that Colorado's Blaine Clause should not preclude parents from choosing a religious school when participating in a school choice program. We are elated that the U.S. Supreme Court has finally settled the debate, in favor of parental choice."
The ruling is tantamount to a "shotgun marriage" between church and state, according to Kevin Welner, director of the National Education Policy Center at the University of Colorado at Boulder. Welner, in an op-ed published Tuesday in the Washington Post, explained that allowing state money to flow to religious schools could entangle the state with the operations of those schools.
Welner told Colorado Politics Tuesday said there are no immediate implications for schools in Colorado. But if a future legislature (and governor) adopted a voucher law, challenging that law based on the state's Blaine Amendment "would be more difficult today than it was yesterday."
The ruling does raise interesting questions around the separation of church and state, a wall that he described in the Washington Post op-ed as little more than a speed bump and one that got lowered with Tuesday's ruling.
In the past, "we struck a bargain. The church stays out of government and the government stays out of the church. If you start tearing down that bargain," the question becomes one of government interference, such as granting tax protections for churches, and how much those protections stay in place. "The court is forcing a relationship between church and state through rulings like this," Welner said. "You wonder what's coming down the line. Can a church sue the state because it can't open a charter school and teach religious beliefs?"
The Court's ruling Tuesday follows another ruling on Blaine from 2017 that has ties to Colorado.
In Trinity Lutheran Church v. Comer, a case from Missouri, the Court ruled a state-funded program for playground materials violated the First Amendment by barring religious organizations from seeking funding.
That case was considered a precursor to one from Colorado, in which Taxpayers for Public Education sued the Douglas County School District over a taxpayer-funded voucher program that would partially pay for Douglas County students to attend any school: private, public or religious. The school didn't even have to be within Douglas County boundaries under the voucher program set up by a conservative school board in 2011. Roughly 95% of the district's 61,000 students would have been eligible for the program in the 2011-12 school year.
The voucher program never went into effect. The school district appealed to the Colorado Supreme Court, which ruled the program unconstitutional in 2015, based on the state's Blaine amendment.
The district appealed to the U.S. Supreme Court, asking the Court to hear their case along with the Trinity case, since they both hinged on Blaine. While the Court decided only to hear the Trinity case in April 2017 and ruled on it the following June, they sent the Douglas County case back to the Colorado Supreme Court for reconsideration in light of their ruling on Trinity.
Before the Colorado Supreme Court could act, the 2017 elections took place and conservatives who backed the voucher program lost. The school board, which included four new members who campaigned on ending the program, dismantled it a month after the election. The Colorado Supreme Court later dismissed the case as moot.