Kendra Espinoza works three jobs to keep her two girls in a private Christian school in Montana. Relief came when the state Legislature established a tax credit for people who donate up to $150 to groups that fund scholarships for private-school tuition.
Then came a court ruling that keeps her cupboards bare. Wednesday, she asked the U.S. Supreme Court for help.
The Montana scholarship program was similar to the one just up the road in Douglas County that was killed by the Colorado Supreme Court at the urging of slightly veiled teachers unions. As in Colorado, money was to follow children to a variety of accredited private schools.
The inclusion of schools with religious affiliations gave the Montana Department of Revenue an angle to challenge the tax credits and keep the money in state coffers. Like Colorado’s, the Montana Constitution contains a Blaine Amendment that prohibits “direct or indirect” appropriation to any school controlled in whole or part by a religious denomination.
The Montana Supreme Court tried to resolve the matter by shutting down the tax-credit program for all students, whether they attend religious or secular schools.
“It’s about school choice and every parent’s ability to choose the right school no matter how much money they make,” said Erica Smith, co-lead counsel for Espinoza, in a conversation with The Gazette on Wednesday.
Smith said she left Wednesday’s hearing “very optimistic” the court will rule in her client’s favor this spring. She expects a ruling that prevents state courts from using Blaine laws to obstruct school choice.
The rationale for the Montana court’s ruling, the Blaine Amendment, violates the First Amendment’s clear requirement that governments remain neutral on religion and do nothing to interfere with the free exercise thereof. The law also flies in flagrant violation of the 14th Amendment’s guarantee of equal protection. Nothing is equal about state-funded scholarships granted for education at secular schools and denied for students at madrassas, Catholic, Lutheran, or Jewish schools.
The U.S. Supreme Court has no history of allowing states to violate protections of the federal Constitution. A few examples:
• The court struck down state amendments that forbade same-sex marriage in Colorado and other states as violations of rights to due process and equal protection.
• The court struck down Colorado’s Amendment 2, which prevented protected status based on sexual orientation, as a violation of equal protection.
• The court said the 14th Amendment prevented cities and states from violating Second Amendment protections of gun rights.
• The court struck Louisiana’s death penalty for child rape as a violation of Eighth Amendment protections against cruel and unusual punishment.
• The court struck a North Carolina law that forbade registered sex offenders from visiting social networking sites used by children, saying it violated the First Amendment’s protection of free speech.
• The court said local governments could not segregate schools by race.
The court has severely restricted “states’ rights” since this country ratified the 14th Amendment in 1868, holding state and local governments to the same restrictions imposed on the federal government by the Constitution. Since then, the U.S. Supreme Court has ruled against more than 900 state laws that deprive individuals of federal protections.
During Wednesday’s hearing, Justice Brett Kavanaugh said Blaine Amendments are rooted in “grotesque bigotry against Catholics.” The Ku Klux Klan lobbied for them in the late 19th and early 20th centuries to prevent Catholic schools from educating immigrants turned away by public schools. Blaine laws are the type of affront to civil rights the court does not tolerate.
Chief Justice John Roberts asked how shutting down the scholarships because some users are religious could differ from shutting down swimming pools because some of the swimmers are black.
“The respondents struggled to answer that and express a distinction,” Smith said.
A state government may neither favor nor disfavor individuals or institutions because of their religious practices or beliefs. A state government must honor equal protection under the law, which involves upholding the guarantee of state neutrality regarding religious belief and nonbelief.
A ruling to favor Espinoza would favor the equal opportunity and liberty this country was founded to provide.