Archives for category: Religion

The US Supreme Court ruled today that teachers in religious schools are not protected by federal anti-discrimination law. Please note that Justice Alita says that the central mission of religious schools is to teach the faith, which is why so many object to public funding of religious schools. If religious schools take public money, are they still exempt from public laws that cover public schools?

David Savage wrote for the Los Angeles Times:

WASHINGTON — The Supreme Court on Wednesday restricted teachers who work at church-run schools from filing discrimination claims against their employers, ruling that the Constitution’s protection for religious liberty exempts church schools from state and federal anti-discrimination laws.

The justices, by a 7-2 vote, ruled that because two elementary school teachers at Catholic schools in Los Angeles County helped carry out the mission of teaching faith as part of their jobs, the schools are free to hire and fire them without concern for antidiscrimination laws.

The decision effectively closes the courthouse door to tens of thousands of teachers nationwide in religious and parochial schools who encounter workplace discrimination based on their gender, age, disability or sexual orientation that would otherwise be impermissible. It is also written broadly enough that it could include many other types of workers at the schools, such as counselors, nurses, coaches and office workers.

In the past, the Supreme Court has recognized an implied “ministerial exemption” that shields churches, synagogues or other religious bodies from being sued by priests, pastors and other ministers. The issue in the pair of cases from Southern California was whether that exemption extended more broadly to teachers in a church-run school whose primary duty was not necessarily religious instruction.

“The 1st Amendment protects the right of religious institutions to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,” Justice Samuel A. Alito Jr. wrote for the majority.

“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission,” he continued. “Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the 1st Amendment does not tolerate.”

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Kristen Biel was a fifth-grade teacher at St. James School in Torrance whose teaching contract was canceled shortly after she told the principal she had been diagnosed with breast cancer. She later sued under the Americans with Disabilities Act, which protects employees from discrimination based solely on a disease like cancer. She died last year, but her husband, Darryl Biel, has maintained the suit.

Agnes Morrissey-Berru had taught fifth grade at Our Lady of Guadalupe in Hermosa Beach for decades when the principal suggested she may want to retire. She refused, and her teaching contract was not renewed. She then sued, alleging age discrimination.

Lawyers for the Catholic Archdiocese said the suits should be dismissed, citing the ministerial exception recognized by the high court. Two federal district judges agreed, but the 9th Circuit Court cleared both suits to proceed, ruling that neither teacher was a religious leader at school.

In dissent, Sotomayor called the court’s ruling “simplistic” because it allows a church to decide which of its employees are central to its religious mission and therefore not covered by antidiscrimination laws.

“That stretches the law and logic past their breaking points,” she said. “The court’s conclusion portends grave consequences.
Thousands of Catholic teachers may lose employment-law protections because of today’s outcome. Other sources tally over a hundred thousand secular teachers whose rights are at risk. And that says nothing of the rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions. All these employees could be subject to discrimination for reasons completely irrelevant to their employers’ religious tenets.”

Trump has made clear that he wants federal funds to flow to private and religious schools if any new aid is approved to help public schools reopen. DeVos and Trump will use any opportunity to push federal money to religious schools.

The Supreme Court’s decision in the Espinoza case, which ruled that any state that aided private schools had to provide aid to religious schools, has encouraged Trump and DeVos to push harder for federal funding of religious schools.

Thus far, the Democrat-controlled Appropriations Committee in the House has blocked all such requests by DeVos and Trump.

President Donald Trump will ask for a “one-time, emergency appropriation” for a new grant proposal, according to an outline of the plan obtained by McClatchy. The grants would be provided to states to distribute to nonprofit institutions that disburse scholarships to qualified students who want to attend non-public schools.

“I have never heard a single, compelling persuasive reason as to why somebody is against Education Freedom Scholarships, opportunity scholarships, school choice, charter schools. And the reason is this: we’re trying to give these kids just another opportunity and provide their parents with another option,” Kellyanne Conway, counselor to the president, told McClatchy.

The White House is seeking to have 10% of the amount that Congress approves for state and local educational agencies set aside for the grants. Trump will also seek approval of $5 billion in federal tax credits for businesses and individuals who donate to the scholarship programs.

The Trump administration has been promoting school choice initiatives for weeks as a way to provide educational opportunities to children in underserved communities and get money to help financially struggling private and Catholic schools before the new school year.

Read more here:

Leaders of Reform Judaism criticized the Supreme Court decision to allow public funding of religious schools.

Sarah Garfinkel, West End Strategy Team; Cell: 202-765-4290

Reform Jewish Movement Denounces Supreme Court Decision Allowing Government Funding of Religious Education

WASHINGTON – In response to the Supreme Court decision in Espinoza v. Montana Department of Revenue permitting state funding of private religious education, Rabbi Jonah Dov Pesner, director of the Religious Action Center of Reform Judaism, released the following statement on behalf of the Union for Reform Judaism, the Central Conference on American Rabbis and the wider Reform Movement institutions:

“We are deeply disappointed in the Supreme Court’s decision to invalidate Montana’s prohibition on state funding of private religious schools. We joined an amicus brief in support of Montana’s prohibition on financial support for religious education, because not only do tuition tax credits and other types of school vouchers divert desperately needed funding from public schools, these programs also violate separation of church and state when such funding is directed towards religious schools.

“Government funding to religious schools requires taxpayers to support religious institutions and beliefs that may violate their own, something the First Amendment was intended to avoid. Conversely, such government funding is bad for religion, for with government funding comes government rules, regulations, monitoring and interference. Religious education must always be the responsibility of the family and faith community, not the government.

“Rather than implementing private school voucher programs, the government should invest in public schools to make them safer, stronger, and more equitable. All of America’s children deserve a first-rate education.”


The Religious Action Center of Reform Judaism is the Washington office of the Union for Reform Judaism, whose nearly 850 congregations across North America encompass 1.5 million Reform Jews, and the Central Conference of American Rabbis, whose membership includes more than 2,000 Reform rabbis. Visit for more.

Jan Resseger writes here with her usual lucidity about the Espinoza decision, which cut another hole in Thomas Jefferson’s “wall of separation between church and state,” a long-sought goal of the radical right. To anyone who refused to vote for Hillary in 2016, this decision is yours.

Please open to read it all, along with the links.

She begins:

On Tuesday, the U.S. Supreme Court released a long awaited decision in the church-state separation case of Espinoza v. Montana Department of Revenue. Chief Justice John Roberts wrote the majority opinion in the 5-4 decision. NY Times Supreme Court reporter, Adam Liptak quotes Roberts’ argument: “‘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.’ In dissent, Justice Sonia Sotomayor said the majority opinion ‘weakens this country’s longstanding commitment to a separation of church and state beneficial to both.’”

Although historically, religious liberty and church-state cases have been decided on the basis of the First Amendment’s “establishment clause,” this week’s decision rests on what’s known as the “free exercise clause.”

In a particularly lucid explication of this week’s decision, VOX’s Ian Millhiser explains: “The First Amendment places two limits on the government’s interaction with religion: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’… Thus, the First Amendment’s Establishment Clause limits the government’s ability to advance religion, and the free Exercise Clause limits the government’s ability to target people of faith. The government is simultaneously obligated both to stay out of religious matters and to protect the rights of the faithful—a dual obligation that courts have often found difficult to reconcile.”

Millhiser continues, explaining that Roberts’ decision rests on a 2017 precedent: “As Roberts argues in his opinion, the result in Espinoza flows from the Court’s previous decision in Trinity Lutheran Church v. Comer… which held that the state of Missouri could not exclude religious organizations from a state program that offered ‘grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.’… According to Roberts, Trinity Lutheran reached the ‘unremarkable conclusion that disqualifying otherwise eligible recipients from a public benefit solely because of their religious character imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.’ Just as the Missouri recycled tires program ‘discriminated against the Church simply because of what it is—a church,’ the Montana constitution ‘bars religious schools from public benefits solely because of the religious character of the schools.’”

The current Espinoza case was brought by several mothers whose children are enrolled in the Stillwater Christian School in Kalispell, Montana. Plaintiffs were represented by—and clearly recruited by—the Institute for Justice, a far-right, libertarian law firm which, for years, has set out to challenge First Amendment protection of the separation of religion from government. In this case, the Montana Supreme Court had already partially shut down the tuition tax credit program at issue in the case. Writing for Education Dive, Linda Jacobson reports that the program will now continue: “In Montana, the ruling means the scholarship program continues because the Montana Supreme Court granted a partial stay, allowing existing scholarship funds to be distributed while awaiting the U.S. Supreme Court’s decision.”

The Espinoza decision will affect the 37 states with what are known as Blaine Amendments in their state constitutions. Jacobson explains: “The statutes are named for James G. Blaine, a U.S. representative who tried, following the Civil War, to get a bill through Congress that would have denied any aid to sectarian schools. His legislation failed, but efforts to write such language into state constitutions were clearly more successful.”

Why are supporters of public education so concerned about the implications of this case? In the first place, voucher programs drain needed tax dollars out of public schools. In Ohio, for example, a state that already permits public funds to flow to religious schools, EdChoice vouchers extract $4,650 for each elementary and middle school voucher and $6,000 for each high school voucher—right from the local public school district’s budget.

Another serious problem with vouchers is that the law protects students’ rights in public schools, but the same laws do not protect students enrolled in private schools. Writing for Slate, Mark Joseph Stern worries that now, after Espinoza: “Taxpayers in most of the country will soon start finding overtly religious education—including the indoctrination of children into a faith that might clash with their own conscience. For example, multiple schools that participate in Montana’s scholarship program inculcate students with a virulent anti-LGBTQ ideology that compares homosexuality to bestiality and incest. But many Montanans of faith believe LGBTQ people deserve respect and equality because they are made in the image of God. What does the Supreme Court have to say to Montanans who do not wish to fund religious indoctrination that contradicts their own beliefs?”

Kevin Welner, a lawyer and specialist in education policy, wrote about the Espinoza decision at Valerie Strauss’s Answer Sheet in the Washington Post:

On Tuesday, the U.S. Supreme Court issued a decision that was once unthinkable. It required the state of Montana to set aside its own constitution’s ban on direct or indirect funding of religious private schools: “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” (p. 20 of the slip opinion).

The principles underlying the U.S. Constitution’s establishment clause, while not yet dead, are in exceedingly poor health this morning.

To be fair, the wall of separation between church and state never really existed. But for a while, there was a fairly high fence. It protected religious institutions from entanglements with the government, and vice versa. In countries without such separation, state institutions such as schools can become instruments of the state’s preferred religion — as the writers of the U.S. Constitutions observed in England and other European countries.

England is, however, an instructive case of what can happen over time. The entanglement between the two institutions initially bolsters the church, but genuine religious beliefs are harder to impose than is nominal adherence to those beliefs. So Americans became more religious over time as they voluntarily brought church attendance and religious teachings into their lives. But the English became less so, even while maintaining state financial assistance for church schools to this day.

In the United States, that high fence of separation between church and state existed from approximately the mid-1940s through the mid-1980s. It transformed our essentially Protestant public schools into secular institutions attended by a cross-section of the population, including strongly religious families. That seeming contradiction of religious upbringing plus nonreligious schooling was, in fact, entirely consistent with Thomas Jefferson’s reasons for embracing a “wall of separation” to avoid government involvement that could corrupt free religious practice, while also protecting the government against church influence.

Churches and related religious institutions benefit from this arrangement in three key ways. First, the government stays away from the internal affairs of churches. While this can lead to fraud and abuse, it also protects religious liberty. Second, the government grants churches freedoms denied to other institutions, including the freedom to discriminate. Third, because “the power to tax involves the power to destroy,” churches are given an extraordinary number of tax benefits. This was outlined in an analysis published in The Washington Post in 2013:

When people donate to religious groups, it’s tax-deductible. Churches don’t pay property taxes on their land or buildings. When they buy stuff, they don’t pay sales taxes. When they sell stuff at a profit, they don’t pay capital gains tax. If they spend less than they take in, they don’t pay corporate income taxes. Priests, ministers, rabbis and the like get “parsonage exemptions” that let them deduct mortgage payments, rent and other living expenses when they’re doing their income taxes. They also are the only group allowed to opt out of Social Security taxes (and benefits).

As part of this exceedingly hands-off approach, church-affiliated institutions were not, in the past, eligible to participate in some government programs. For instance, while private religious colleges could receive aid to help students fund their education, the court prohibited state aid directly to religious K-12 schools.
Today’s Supreme Court does not share Jefferson’s vision. In fact, the court has been sawing away at the high fence for decades. In cases posing challenges to state funding of religious institutions, the court has steadily permitted greater and greater financial entanglements.

In fact, in a case three years ago called Trinity Lutheran v. Comer, the court pronounced that states can, under some circumstances, be constitutionally required to fund religious institutions, pursuant to the free-exercise clause of the First Amendment.

Will the Supreme Court’s Trinity decision lead to the spread of school voucher programs?
When providing a public benefit (in that case, state grants for playground resurfacing), the state cannot make religious status an impediment to receipt of that benefit — at least where the benefit is not directly supporting religious practice.

Even from this conservative court, the Trinity Lutheran decision was a bit of a surprise. Earlier, in 2004, in a case called Locke v. Davey in which the majority opinion was written by the very conservative Chief Justice William H. Rehnquist, the court found no constitutional impediment to a state prohibiting a college scholarship from being used directly to support religious practice, by excluding students pursuing a “degree in devotional theology.”

With those key precedents, the court today decided a case involving a neo-voucher law that had been adopted in Montana. The law used tax credits to create a funding mechanism for small vouchers (about $500 each) to help pay for private school tuition. Because the Montana state constitution includes a “no aid” clause that prohibits direct or indirect state support for church-controlled schools, the Montana Department of Revenue only allowed the law to go forward on the condition that religious schools be excluded.

A lawsuit called Espinoza v. Montana Department of Revenue challenged that ruling and made its way to that state’s Supreme Court. That court struck down the entire neo-voucher law, thus avoiding the possibility of anti-religious discrimination raised in Trinity Lutheran v. Comer, while also avoiding a violation of the Montana constitution. That should have ended the matter, but the U.S. Supreme Court decided to weigh in.

Before discussing the court’s decision in the Espinoza case, it’s important to step back and consider the unusual ideological extremity of the current Supreme Court. The court was designed as a moderating institution. One fundamental reason for this is that the more-extreme views of any single justice typically will have only a minimal impact on the court’s final decision. The court will only take the law as far as the “fifth vote” or “swing vote.” If four justices wanted, for instance, to declare all affirmative action programs unconstitutional, but the fifth vote in that case wanted to allow limited affirmative action programs under narrow circumstances, then the latter becomes the new legal standard.

The court also is designed to be somewhat insulated from political pressures, with justices appointed for life. One result is that presidents can ultimately be surprised by their appointments. We saw this, for instance, with Eisenhower appointee Justice William J. Brennan Jr. ending up to the left of Kennedy appointee Justice Byron R. White.

Yet the Supreme Court has now become almost as ideologically predictable as the Congress. And the ideological pendulum has become a one-way bulldozer — a process that started during the Nixon administration. The so-called swing justice went from Lewis F. Powell Jr. in the 1980s to Sandra Day O’Connor, to Anthony M. Kennedy to, now, Chief Justice John G. Roberts Jr. All of these were Republican appointees, but they’ve become more conservative with each new retirement. So the court has moved further and further to the right. There’s now a reliable five-justice majority on issues ranging from school vouchers and affirmative action to border control and deregulation.

I would be remiss if I did not mention here the most momentous and egregious event in this process of building the current ultraconservative court: the unprecedented obstruction of President Barack Obama’s nominee Merrick Garland.

Scalia died unexpected in February 2016, and Obama put forward Garland’s nomination in March. But Senate Majority Leader Mitch McConnell (R-Ky.) refused to allow any confirmation hearings, citing the presidential election to take place eight months later. President Trump eventually appointed Justice Neil M. Gorsuch to the seat, maintaining the conservative five-justice majority (which was soon strengthened with Justice Brett M. Kavanaugh replacing Justice Anthony M. Kennedy). Had Garland replaced Scalia, the swing justices (depending on the issue) would have been moderate-liberal justices Stephen G. Breyer, Elena Kagan and Garland — with Justices Ruth Bader Ginsburg and Sonia Sotomayor reliably to their left. Even though Garland was generally seen as a moderate judge, this would have been the court’s most momentous shift to the left since the 1960s. Decisions like that handed down today would have looked far different.

But the Espinoza decision was itself decades in the making. The legal landscape for vouchers supporting private religious schools has changed 180 degrees, corresponding to the shift in the makeup of justices on the Supreme Court. Vouchers for religious schools have moved from being broadly understood to be constitutional forbidden in 1970s to constitutionally allowed in 2003, via the Zelman decision, to now arguably constitutionally required, at least under the Montana circumstances.

Let’s return to that high fence mentioned earlier. Once the Supreme Court decided to hear the Espinoza case, we were left to hope that it would at least leave in place a speed bump of separation between church and state.
What we got instead is a shotgun marriage between church and state.

The court’s decision this morning held that application of the “no aid” provision in the Montana state constitution was barred by the Constitution’s free-exercise clause. The Montana provision prohibited any direct or indirect aid to a school controlled by a “church, sect, or denomination.” Like the dispute at issue in the Trinity Lutheran case, this prohibition was based on status as a religious institution, rather than a religious use. But the court’s Espinoza majority opinion — written by Roberts and joined by the other four conservative justices — also minimizes that distinction, which was important in Locke and potentially crucial to the decision in Trinity Lutheran:

“None of this is meant to suggest that we agree with the Department [of Revenue] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. Some Members of the Court, moreover, have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. [Citations to Justices Gorsuch and Thomas]. We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status. (Page 12, with internal citations omitted.)”

Here’s more critical language, from pages 13-14 of the court’s slip opinion (with internal citations omitted and emphasis placed on one sentence):

“Locke differs from this case in two critical ways. First, Locke explained that Washington had “merely chosen not to fund a distinct category of instruction”: the “essentially religious endeavor” of training a minister “to lead a congregation.” Thus, Davey “was denied a scholarship because of what he proposed to do — use the funds to prepare for the ministry.” Apart from that narrow restriction, Washington’s program allowed scholarships to be used at “pervasively religious schools” that incorporated religious instruction throughout their classes.”

By contrast, Montana’s constitution does not zero in on any particular “essentially religious” course of instruction at a religious school. Rather, as we have explained, the no-aid provision bars all aid to a religious school “simply because of what it is,” putting the school to a choice between being religious or receiving government benefits.

At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefits. Second, Locke invoked a “historic and substantial” state interest in not funding the training of clergy, explaining that ‘opposition to … funding “to support church leaders’ lay at the historic core of the Religion Clauses.” … But no comparable “historic and substantial” tradition supports Montana’s decision to disqualify religious schools from government aid.

The court concludes, “[I]t is clear that there is no ‘historic and substantial’ tradition against aiding such schools comparable to the tradition against state-supported clergy invoked by Locke.” (p. 16). But this historical focus was a side note in the court’s earlier Locke decision. What Roberts did this morning was to limit Locke to its unique facts, marginalizing its usefulness as a precedent.

But note that sentence in bold from the passage above. A state’s constitution is given meaning by the state’s courts. Imagine if, upon remand, the Montana Supreme Court issues a new decision, saying something like: “In view of the U.S. Supreme Court’s decision, we interpret the ‘no-aid’ provision in our state constitution to prohibit any direct or indirect financial support to religious instruction in church-controlled schools.”

This would allow a voucher law that provides support to religious schools but not to religious education. Implementing or enforcing that funding mechanism would entangle the state with the operations of the religious schools, but it would seem doable. Would the Roberts court find that approach to be constitutional, or would it further restrict the reach of Locke?

What’s clear for now is that the long-standing “tuitioning” voucher systems in Maine and Vermont, which are limited to nonreligious private schools, cannot stand. There will have to be a shotgun wedding between church and state in those two states.

Other implications, which will reach beyond school vouchers, will emerge in the upcoming months and years.

Peter Greene worries that the Espinoza decision is another step in the movement to establish the principle that the public should fund religious schools. He believes this is ominous.

I don’t disagree. That’s why Trump and DeVos celebrated the Court’s decision that all state scholarships for private schools must include religious schools. I was pleased that the Court did not take the final step that would completely eliminate any state bans on funding religious schools. That would have the public pay for thousands of religious schools, as well as ersatz religious schools, of meager or low quality. They left open the future disposition of cases that test the legitimacy of state constitutional prohibition of paying for religious school tuition. This underscores the importance of the 2020 election and of ousting Trump. No more justices who would destroy public education.

Greene begins:

The Supreme Court has, as expected, poked another hole in the wall between church and state; it will weaken public education and open the door to making taxpayers foot the bill for religious discrimination.

Espinoza v. Montana Department of Revenue has further extended the precedent set by Trinity Lutheran v. Comer, a case that for the first time required “the direct transfer of taxpayers’ money to a church.” Historically, the free exercise clause of the First Amendment has taken a back seat to the establishment clause; in other words, the principle was that the government’s mandate to avoid establishing any “official” religion meant that it could not get involved in financing religious institutions, including churches or church-run private schools.

This has been a big stumbling block for the school voucher movement, because the vast majority of private schools that stand to benefit from vouchers are private religious schools. In fact, where school vouchers have been established, they are overwhelmingly used to fund religious schools.

But for several years, conservative fans of school choice (including Secretary of Education Betsy DeVos) have been pushing the argument that a religious school is not free to exercise its religious faith if it does not get to share in taxpayer dollars. The wall between church and state has thus been characterized as discrimination against religion, and as conservatives celebrate this decision, they repeatedly characterize it as a blow for freedom. Turns out you can’t be really free without taxpayer funding.

There are a host of problems with the SCOTUS decision and the arguments behind it.

For one, the freedoms that private religious schools wish to enjoy include the right to discriminate. Choicers like to argue that vouchers make families free to choose, but private schools are free to reject students for any reason they choose. Investigations found that Florida’s robust voucher program funnels millions of dollars to schools that reject or expel LGBTQ students and faculty. Because Florida imposes little accountability on its private schools, the Orlando Sentinel also found private schools teaching about the happy co-existence of white owners and Black slaves in the pre-Civil War South as well as how men and dinosaurs once lived together.

For taxpayer dollars to flow to private religious schools, one of two choices has to be made. Either private schools retain their freedom to operate as they please, or they are accountable to taxpayers for living under the same rules as a public school. The former opens up the possibility of students being taught ideologically based falsehoods, even as taxpayers fund schools to which their own children would not be admitted. The latter means that private schools would trade a financial windfall for a loss of autonomy, maybe even have to accept some of Those Peoples’ Children in their private school. Sometimes we forget that the wall between church and state was also meant to protect the church; when you mix religion and politics, you get politics.

Steve Hinnefeld blogs about education. He is based in Indiana, which has funded charters and vouchers, the latter despite a state constitution that bans funding religious schools.

He writes here about the Supreme Court’s Espinoza decision that held that religious schools must be included in state programs that fund private schools (almost all state voucher programs already fund religious schools, in fact, I can’t think of one that does not do so).

Hinnefeld interviewed a legal scholar, who explained how misinformed the Court was:

The majority opinion — and especially concurring opinions by Justices Samuel Alito and Clarence Thomas — framed the decision as a blow against anti-Catholic bias enshrined in state constitutions via 19th century “Blaine amendments.” But that view papers over complex history, said Steven K. Green, a legal scholar at Willamette University and a leading expert on church-state issues.

Green told me it was disappointing that the court, in a highly consequential decision, “relied, to a certain extent, on a shortsighted view of history, not recognizing the nuances behind the development of the no-aid provisions.” Green elaborates on that history in an amicus brief submitted to the court on behalf of several Christian religious organizations that supported Montana’s position.

Blaine amendments get their name from James Blaine, a Maine congressman and senator and U.S. secretary of state in the late 1800s. In 1875, Blaine introduced a constitutional amendment to prohibit federal funding of religious institutions. It failed, but some states adopted similar provisions for state funding.

The late 1800s were a time of rising anti-Catholic and anti-immigrant bias. In Indiana, the nativist Know-Nothing Party gained a large following. But restriction on state funding of religion “predates the Know-Nothings and the Blaine amendment,” Green said. “And it occurred in places where there was not that much religious strife.

“Without a doubt, a lot of people, during the Blaine amendment arguments, certainly raised anti-Catholic rhetoric,” he said, “But that misunderstands the origins and purpose of the no-funding provisions. The nuance is just left out.”

For one thing, 15 of the state Blaine amendments predated Blaine and his proposal. Michigan was the first state to put a ban on state funding for religion in its constitution – in 1835, when Blaine was 5 years old.

Wisconsin followed in 1848 and Indiana in 1851. I’ve read the notes from the Indiana constitutional convention, and there is no anti-Catholic animus there. In Indiana and in other states, the primary concern was to ensure adequate funding for the public schools they were beginning to establish.

Green said the Supreme Court also ignores history when it downplays the importance of keeping church and state separate.

The First Amendment includes two clauses concerning religious freedom: it forbids “the establishment of religion” and bans laws that prohibit “the free exercise” of religion. The framers of the U.S. Constitution, especially Thomas Jefferson and James Madison, were deeply concerned that state support for religion would entangle government with churches: hence the establishment clause and Jefferson’s famous words about “a wall of separation” between church and state.

“The court seems to say the provision on establishing religion has to take a back seat to the free exercise clause,” Green said.

Consequential Court decisions based on misinformation and error should be overturned.

Derek Black is a law professor at the University of South Carolina who specializes in education, civil rights, and equity. His new book, which I have read and intend to review here, is Schoolhouse Burning. It is phenomenal. It is a new history of American education that documents the historic role of public education in our democracy from the Founding Fathers to the recent past.

Black writes:

Through a political lens, the Supreme Court decision in Espinoza v. Montana requiring the state to include religious schools in its voucher program makes perfect sense. Conservatives have long decried the fact they must foot tuition at their private religious schools while other students receive free education at public schools. Today they got their shot at fixing that.

But through a constitutional lens, the decision can be confusing to all but the constitutional experts.

First is the question of “mootness.” The dissent argues that the case should never have been decided at all because Montana’s voucher program is no longer in operation, but the majority decided the case anyway, reasoning that but for a flaw— the lower court’s flaw in striking the entire program down—the program would be operating to exclude religious groups.

With that out of the way, the majority hinges its opinion on the notion that a refusal to fund religious education is the same thing as religious discrimination. That logic, however, dismisses the tension between the constitution’s competing religious clauses: one barring the establishment of religion and the other guaranteeing the free exercise of religion. Because a state cannot establish or promote religion, it is understandable why it would not want to fund religious education–and that decision is distinct from actively discriminating against or limiting religious activities or adherents. The Court recognized as much in Locke v. Davey in 2003, when it held that Washington did not have to fund college scholarships for students pursuing degrees in devotional theology just because it provided scholarships to other students.

The majority in Espinoza acts as though it is flummoxed in understanding what Montana was trying to achieve. It cannot imagine any legitimate reasons. The most the Court can discern is that Montana’s bar on funding religious education is a hold-over from an anti-Catholic period in history. But there, too, the Court is overly simplistic. Without question, nativist and Protestants were hostile toward Catholics during the second half of the 19th century and hoped to “Americanize” them in public schools. But reducing states’ prohibitions on funding religious institutions solely to anti-Catholicism or nativism ignores the development of public education against the backdrop of religious education.

These no-aid rules also coincided with the rise of formal systems of public education. Prior to those systems, states had funded and relied on religious institutes for education. The patchwork of religious schools, however, eventually proved insufficient to meet the nation’s vast and growing educational needs. Public education at public expense was the solution.

When states like Pennsylvania, for instance, included public education obligations in their state constitutions, many began cutting ties with private institutions. They did not want to, in effect, finance the competition. Of course, the only notably private institutions out there were religious ones—hence the laws that prohibited aid to religious schools rather than the broader category of private schools.

In fact, when Montana revised its constitution in 1972, it made its shift away from any prior questionable motives clear. As the 1972 Constitutional Convention delegates explain in their amicus brief, Montana sought to build a wall around public funds because the “breathtakingly ambitious goals for Montana’s educational system—guaranteeing equal educational opportunity—required strict protection of the State’s funds for its public schools.” As to the specific prohibition on funding religious schools, the delegates wrote that “[r]ather than being motivated by anti-religious animus, many delegates urged adoption of the no-aid clause to protect religious institutions from government interreference” that would follow from becoming entangled with religious education.

Therein lies an important lesson for us: states’ prohibition on financing religious education represents the broader principle that government should not be in the business of financing private education—religious or not. And now that states are crossing that line, they are getting themselves into all sorts of legal problems, including finding themselves on the wrong side of a Supreme Court predisposed to find religious discrimination. And this is to say nothing of the fact that they are asking their public schools and students–which their state constitutions obligate them to support–to make sacrifices so that they can pursue policy fads in the form of vouchers. This, I explain in Schoolhouse Burning: Public Education and the Assault on American Democracy (, endangers not only public education but core values of American democracy.

All these flaws aside, the case immediately impacts only a few states because most of the states currently operating voucher and tax credit programs already permit their use at religious schools. But the case does portend another set of legal problems. Those states that don’t fund religious education have valid reasons. Staying true to those reasons demands that those states must regulate religious schools. As a result of Espinoza, they now have to worry about what is being taught in religious schools and how students are being treated. One way to fix that is to require that religious schools comply with all the same anti-discrimination protections that public schools do—the exact type of “interference” Montana’s 1972 Convention sought to avoid. This, of course, will open new debates about whose values should control—those of the wider public and government or those of religious schools–and further test our democratic values. The other easier fix is to just end their voucher programs altogether.

The Supreme Court ruled 5-4 that states with private school scholarships must provide similar funding to religious schools. This was bizarre because the Montana Supreme Court had already banished the state’s private school scholarship program, which offered $150 to families that chose private schools and sought a state scholarship. So the state of Montana will not owe $150 to the Espinoza family.

Pastors for Texas Children criticized the ruling:

For Immediate Release June 30, 2020

Statement on the Supreme Court Decision in Espinoza

Contact Charlie Johnson, Executive Director 210-379-1066 Cameron Vickrey, Associate Director 704-962-5735

Fort Worth, TX – The Supreme Court decision today in Espinoza v. Montana Department of Revenue is an attack on God’s gift of religious liberty for all people.

In ruling that states must allow religious schools to take part in programs that provide state-sponsored scholarships, the freedom of religion for us all is jeopardized.

“For the State of Montana, or any governmental authority, to divert money from public schools to underwrite religious schools is patently wrong,” said the Rev. Charles Foster Johnson, executive director for Pastors for Children.

A tuition tax credit for religious school scholarships takes dollars away from the state treasury for public schools and diverts those dollars to subsidize private religious schools.

Why does the State of Montana, or any state, have any role or agency whatsoever in religious schools?

Public schools accept all children regardless of race, class, status, disability, sexual orientation, and religion. They are where students of all faiths and no faith encounter one another in mutual understanding, where our nation’s constitutional values of religious liberty and respect across lines of difference are lived every day. They protect marginalized students, especially poor students, disabled students, students of color, and LGBTQI+ students.

That’s why the taxing authority of state government supports them.

And why it should stay out of our church schools.

Will Montana religious schools now be required to accept all students who apply?

It is the very nature of a private school to be exclusive. Private religious schools were not formed to be religiously neutral. They are voluntary assemblies protected by the First Amendment to advance and establish religious conviction and teaching. These religious schools constitute a core religious mission. They should be protected from government intrusion.

Let private schools remain private, public schools remain public. Common sense Americans know this. Such wisdom that has sustained our country since its inception escaped the Supreme Court today.


About Pastors for Texas Children:
Pastors for Texas Children works to provide “wrap-around” care and ministry to local schools, principals, teachers, staff and schoolchildren, and to advocate for children by supporting our free, public education system, to promote social justice for children, and to advance legislation that enriches Texas children, families, and communities.

Randi Weingarten is not only president of the AFT, she is a lawyer. Below is her reaction to the Supreme Court ruling. She calls it a “seismic shock.” She sees the decision as one more step in the relentless rightwing effort to defund and privatize public schools. She thinks the decision set the stage for an even more radical decision, one that requires states to fund religious school tuition as some states (think Florida, Indiana, Ohio) currently do.

Randi is right, but I was actually relieved that the decision was not far worse. I was afraid that the current Supreme Court, with Trump’s addition of two super-religious justices (Gorsuch and Kavanaugh), would overturn all Blaine amendments and require states to pay religious school tuitions in full. But the decision was far narrower. It said that any state that has a program to fund private schools must admit religious schools to the same program. So Montana, which has a private scholarship program, must include religious schools on the same footing as other private schools. That means that the Espinoza family has won $150 per year for all their troubles.

People like Betsy DeVos and her American Federation for Children, Jeanne Allen and her Center for Education Reform must be terribly disappointed that the decision did not tear down Thomas Jefferson’s “wall of separation between state and church,” thus compelling states to pay full tuition for students at religious schools, regardless of their ideology, their quality, or their lack of certified teachers. That didn’t happen, thank God!

The public schools, the schools that nearly 90% of all American families choose, the schools that educated the overwhelming majority of the American people, have survived a close call. If Biden wins in November and Ruth Bader Ginsburg remains healthy until Biden’s inauguration, we will in time have a Supreme Court that supports public schools.

Randi warns:

WASHINGTON—American Federation of Teachers President Randi Weingarten issued the following statement after the U.S. Supreme Court issued a decision in Espinoza v. Montana Department of Revenue:

“This ruling in the Espinoza case is a seismic shock that threatens both public education and religious liberty. It is a radical departure from our Constitution, American history and our values. As Justice Sonia Sotomayor said in her dissent, this ruling is ‘perverse.’

“Never in more than two centuries of American history has the free exercise clause of the First Amendment been wielded as a weapon to defund and dismantle public education. It will hurt both the 90 percent of students who attend neighborhood public schools, by siphoning off needed funds, and, in the long term, those who attend religious schools by curtailing their freedom with the accountability that comes with tax dollars.

“The court’s narrow conservative majority joined with Donald Trump, Betsy DeVos, and other wealthy donors and special interests to attack public education and turn the First Amendment on its head. What’s even more disturbing is that some justices wanted to go even further.

“While the court didn’t invalidate the 38 state constitutional provisions that preclude public money from going to religious schools, it came very close. The financial backers of this case will now use it to open the floodgates to litigation across the country.

“I hope the court and the plaintiffs understand that by enabling this encroachment on religious liberty, they are also opening up religion to state control and state interference. With public funding comes public accountability. Upending the carefully constructed balance of free exercise and separation of church and state not only undermines public education, it is a grave threat to religious institutions and organizations.

“In this time of national crisis, we have seen the importance of our public schools. Children across the country rely on public education for far more than just academics: Thirty million kids eat lunch in school, 12 million eat breakfast in school, and schools provide millions more with their healthcare. We should be prioritizing additional resources for public education and other vital social programs, not diverting them to private purposes.

“We are not going to give up. In fact, we are only going to fight harder. Parents, teachers and their unions stood up and fought back—and we will continue to do so each and every day, whether in court, in Congress, in state legislatures or at the ballot box.

“When it comes to Donald Trump and Betsy DeVos’ attacks on public education, we will see them in November.”