Requirement of Aid (Part II)

The question of governmental aid to religious institutions is complicated in a number of states by what are known as Blaine Amendments.  In 1875, Representative James G. Blaine of Maine proposed a constitutional amendment that would have modified the First Amendment by adding a provision that “no money raised by taxation in any State for the support of public schools … shall ever be under the control of any religious sect.”  (At the time, “sect” was code for “Catholic”). Blaine’s amendment passed overwhelmingly in the House but narrowly failed in the Senate.  Nevertheless, in the wake of his effort, roughly 3/4 of the states passed their own funding restriction (sometimes called “Little Blaine” Amendments).  As law professor Marc DeGirolami writes:

The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them–the “animus” in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on “neutral” grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments’ tainted genesis–their anti-Catholic animus–has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case where the challenge was on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to “sectarian” schools is justified on Establishment Clause grounds as tainted by wicked animus.

The controversy underlying the Court’s decision in Trinity Lutheran grew out of Missouri’s Blaine Amendment, but none of the opinions explored the connection. This history is much more explicit in Espinoza: Chief Justice Roberts’ majority opinion references the Blaine Amendment, and Justice Alito’s concurring opinion focuses heavily on the anti-Catholic history.

Relying extensively on Trinity Lutheran, the Court in Espinoza held that Montana’s “no-aid” provision discriminated against religious schools and thus violated the Free Exercise Clause. The Court in Espinoza distinguished Locke on two grounds: (1) Locke dealt with religious use, while Espinoza dealt with religious status; and (2) Locke involved the “historic and substantial” tradition of not funding the clergy. In dissent, Justice Breyer said that he finds the “religious-studies case” (Locke) to be “strikingly similar” to Espinoza, while the “school-playground case” (Trinity Lutheran) is “importantly different.” Examine the arguments at play: Who do you find more persuasive?  What about Justice Sotomayor’s argument that the Court shouldn’t have decided this case in the first place?

The various opinions in Espinoza call to mind themes that we’ve seen surface throughout the course. Justice Thomas’ concurrence argues that the Court’s “interpretation of the Establishment Clause continues to hamper free exercise rights”—do you agree? More generally: After Espinoza and Carson v. Makin, how would you describe the state of the Religion Clauses in the context of school funding?

Reading Assignment:

  • Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020) 

  • Carson v. Makin, 596 U.S. ___ (2022)

Optional Reading: