Founding Father James Madison must be turning over in his grave today. James Madison was the chief author of the Bill of Rights and thus of the First Amendment. He was the foremost champion of religious liberty.

James Madison’s “Memorial and Remonstrance Against Religious Assessments”, a document presented to the Virginia General Assembly in 1785, argued for complete religious liberty and against government support of religion in any form. Memorial and Remonstrance (The First Amendment Ecyclopedia):

Madison’s target was an assessment bill that would have imposed a general tax on Virginians to pay “teachers of the Christian religion” a modest salary. His efforts not only helped defeat the bill, but also created a political climate in Virginia that enabled him to secure passage the next year of the Virginia Statute for Religious Freedom, the first unreserved guarantee of religious liberty and full separation of church and state in U.S. history. The “Memorial” also reveals Madison’s thinking about religious freedom four years before he introduced a national Bill of Rights in 1789.

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Madison argued Christianity flourished best without the support of government. Religious establishments bred “pride and indolence in the clergy,” and the assumption that Christianity could not survive without the patronage of government was “adverse to the diffusion of the light of Christianity.”

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Madison’s ”Memorial” was widely circulated throughout the state, and with the support of Baptists and Methodists, who distrusted religious establishments from long experience, the assessment bill was defeated. Madison used the political momentum of the assessment contest to secure passage in 1786 of the Virginia Statute for Religious Freedom, originally drafted by Thomas Jefferson, who in 1786 was serving as a diplomat in France. Madison wrote to Jefferson that passage of the bill has “extinguished forever the ambitious hope of making laws for the human mind.”

Or so they thought. Since the modern conservative movement on the U.S. Supreme Court, beginning with Chief Justice William Rehnquist, there has been a steady erosion of the wall of separation of church and state with a revisionist reinterpretation of the First Amendment far different from the “original intent” of James Madison.

Amy Howe at SCOTUSblog reports, Opinion analysis:Court rules that religious schools cannot be excluded from state funding for private schools:

In 2015, the Montana legislature created a scholarship program that provided a dollar-for-dollar tax credit for donations to private scholarship organizations. Those organizations used the money to fund scholarships for children to attend private schools – which, in Montana, are primarily religious schools. In 2018, the Montana Supreme Court struck down the tax-credit program, holding that it violated the state constitution’s ban on aid for churches and religious schools.

Note: This is commonly referred to as the Blaine Amendment, a failed amendment to the U.S. Constitution that would have prohibited direct government aid to educational institutions that have a religious affiliation. Thirty-eight of the fifty states later adopted provisions of Blaine in their state constitutions. See, Arizona Constitution, Article 2, Section 12: “No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.”

Today the U.S. Supreme Court threw out the Montana Supreme Court’s decision. By a vote of 5-4, the justices ruled in Espinoza v. Montana Department of Revenue that the state court’s interpretation of the Montana constitution violated the U.S. Constitution, which protects the free exercise of religion. States are not required to subsidize private education, Chief Justice John Roberts explained in his opinion for the majority. But if they opt to do so, they cannot exclude religious schools from receiving those funds simply because they are religious.

The ruling came in a lawsuit filed by three low-income mothers who wanted to be able to use the scholarships to keep their children in Stillwater Christian School, a religious school in Kalispell, Montana. One of those mothers, Kendra Espinoza, is a single parent who sent her daughters to Stillwater after one struggled in public school and the other was bullied. The school appealed to her not only because it is private, but also because it “teaches the same Christian values that” Espinoza tries to teach at home.

The Constitution’s free exercise clause protects people who are religious from being treated unequally, as well as from laws that discriminate based on religion, Roberts began. Three years ago, in Trinity Lutheran Church v. Comer, Roberts explained, the court “distilled” its decisions interpreting the free exercise clause into the “unremarkable” conclusion that, when the government denies an otherwise available benefit solely because of the would-be recipient’s religious nature, the denial is subject to the most stringent standard of constitutional review, known as strict scrutiny.

In this case, Roberts continued, the “no-aid” provision in Montana’s constitution clearly prohibits religious schools (and parents who want to send their children to those schools) from receiving funds through the tax credit program solely because the schools are religious. Therefore, it too is subject to the “strictest scrutiny,” and it can only survive if it is “narrowly tailored” to promote “interests of the highest order.” Roberts rejected each of the state’s arguments about the interests that the no-aid provision purportedly promoted. The provision cannot be justified as an extra protection against the separation of church and state, Roberts observed, because the U.S. Constitution’s establishment clause – which prohibits the government from establishing an official religion or favoring one religion over another – already serves that purpose. And although the Montana Department of Revenue asserted that the no-aid provision actually promotes religious freedom – both by ensuring that taxes don’t go to religious groups and by keeping the government out of the religious groups’ business – that is not enough, Roberts wrote, when the provision infringes on the schools’ and parents’ rights to exercise their religion. Finally, Roberts dismissed the state’s suggestion that the no-aid provision promotes the state’s interest in public education as unconvincing, noting that the provision only bars aid to religious schools, not to all private schools.

In an opinion joined by Justice Neil Gorsuch, Justice Clarence Thomas reiterated his belief that the establishment clause is far more limited than the court has interpreted it to be: It bars the federal government from establishing an official religion, but goes no further than that. [James Madison takes issue with this!] And in Thomas’ view, the court’s “wayward” and “overly expansive” approach to the establishment clause has also resulted in a “correspondingly cramped interpretation” of the free exercise clause, as state and local governments argue that violations of free exercise rights are required to comply with the establishment clause. The Supreme Court, Thomas concluded, “has an unfortunate tendency to prefer certain constitutional rights over others,” and the free exercise clause “rests on the lowest rung of the Court’s ladder of rights.” “Returning the Establishment Clause to its proper scope will not completely rectify the Court’s disparate treatment of constitutional rights, but it will go a long way toward allowing free exercise of religion to flourish as the Framers intended.”

Justice Samuel Alito also filed a concurring opinion in which he focused on the “original motivation” for the no-aid provision. A number of “friend of the court” briefs supporting the state, Alito stressed, “point out that Montana’s provision was modeled on the failed Blaine Amendment to the” U.S. Constitution. The Blaine Amendment, proposed in 1875 and “prompted by virulent prejudice against immigrants, particularly Catholic immigrants,” would have prohibited aid to Catholic and other religious schools. And if the original motivation for state laws allowing nonunanimous jury verdicts in criminal cases mattered earlier this term in a challenge to the constitutionality of those laws, Alito (who dissented in that case) argued, “it certainly matters here.”

Note: John Roberts, Samuel Alito, Clarence Thomas, Brett Kavanaugh and Sonia Sotomayor are practicing Catholics; Neil Gorsuch was raised Catholic but reportedly attends an Episcopal church. Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan are Jewish.

Justice Ruth Bader Ginsburg dissented, in an opinion joined by Justice Elena Kagan. She stressed that the Montana Supreme Court’s decision invalidated the entire tax credit program, so that no one is receiving any money for private schools – whether they are secular or religious. Therefore, Ginsburg contended, no one is being treated differently based on religion, and there is no constitutional problem.

Justice Stephen Breyer filed a dissenting opinion that Kagan joined in part. He warned that the “majority’s approach and conclusion in this case” “risk the kind of entanglement and conflict” that the establishment and free exercise clauses “are intended to prevent.” “If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom,” Breyer wrote. Breyer criticized what he characterized as the majority’s bright-line rule that “all distinctions on the basis of religion” “are similarly and presumptively unconstitutional,” as well as the questions that Roberts left open about the limits of today’s ruling – for example, will the state be required to fund religious public schools?

Justice Sonia Sotomayor filed her own separate dissent in which she described the majority’s decision as “perverse.” “Without any need or power to do so,” she wrote, the Supreme Court “appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.” Although the Supreme Court has acknowledged that the government cannot bar the free exercise of religion, she continued, that “has never meant that a majority could use the machinery of the State to practice its beliefs.”

Today’s decision was a landmark win for school-choice advocates. In a statement released by the Institute for Justice, which represented the parents in the case, lawyer Erica Smith described today’s ruling as a “major victory” for “parents who want to choose the best school for their children, including religious schools.” The decision, she continued, “will allow states across the country to enact educational choice programs that give parents maximum educational options.”

Opponents of the scholarship program, by contrast, warned that the ruling could have a negative impact on public schools. A statement released by Tamerlin Godley of the law firm Munger, Tolles & Olson on behalf of the group Public Funds Public Schools cautioned that “[d]iverting limited public funds to support private schools does not improve educational opportunities for students. Our focus should be to strengthen our country’s underfunded public schools.”

Espinoza v. Montana Dept. of Revenue. Here is a link: https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf.

Steven Green, the Fred H. Paulus Professor of Law and director of the Center for Religion, Law & Democracy at Willamette University College of Law, who filed an amicus brief on behalf of a number of religious groups in support of the respondents in this case explains at SCOTUSblog, Symposium: RIP state “Blaine Amendments” – Espinoza and the “no-aid” principle (excerpt):

The federal establishment clause [of the First Amendment] is not the only word on the issue of government support for religion, however. States, of course, have their own constitutions, and the vast majority – 48 to be exact – contain provisions that place limits on government funding of religious activity. Some state provisions mirror the language of the federal establishment clause, but a surprising number do not. Instead, states, acting as sovereign entities, chose different and sometimes more exacting language.

Twenty-nine state constitutions contain “no-compelled support” clauses, modeled chiefly on Pennsylvania’s 1776 constitution, which provided that no person could “be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent.” This reflected an early revulsion against the government funding of religious activity, as Breyer’s opinion discusses. In addition, 27 state constitutions restrict public appropriations or draws from state treasuries to “public purposes” or for “public uses,” or require them to remain under “public control.” And finally, 38 state constitutions contain provisions that prohibit public monies being spent in aid of religious institutions or religious education. These no-aid to religion clauses are commonly called state “Blaine Amendments” by detractors.

It was this last type of provision – a no aid to religion clause – that was at issue in Espinoza. Montana’s no-aid provision is one of the stricter and more detailed clauses of this genre. It prohibits the “payment from any public fund or monies, or grant of lands or other property for any sectarian purpose or to aid any church, school … controlled in whole or in part by any church, sect, or denomination.” It was first adopted in 1888, and then readopted in 1972.

The Supreme Court has sent mixed signals about the propriety of these state provisions, as well. In Locke v. Davey (2004), the court, in an opinion by Chief Justice William Rehnquist (!), upheld a state’s reliance on its stricter no-aid provision to prohibit an applicant from using a state scholarship for a theology degree, highlighting the “play in the joints” between the free exercise and establishment clauses and the federal and state constitutions. Then, three terms ago in Trinity Lutheran Church v. Comer, the court allowed a state grant to a church for an upgrade of its facilities, now brushing aside that state’s no-aid provision, calling it simply a “policy preference” that failed to be compelling. Today, the court expands on Trinity Lutheran not only by subordinating the values of such provisions but by condemning their origins and purposes.

Detractors of the no-aid rule have had state no-aid provisions in their crosshairs for decades. For more than 20 years they have urged the Supreme Court to strike the no-funding provisions on grounds that they were motivated by religious animus against Catholicism, arguing that many arose at a time of religious conflict between Protestants and Catholics. These detractors of the no-aid provisions were able to secure the ear of the plurality in Mitchell v. Helms (2000), in which Thomas opined that the no-funding “doctrine [was] born of bigotry, and should buried now.”

Detractors base their arguments on the failed Blaine Amendment of 1876, which came close to amending the U.S. Constitution to insert a specific no-aid provision. Anti-Catholic rhetoric ran high in the public debates over its enactment (less so in the legislative debates). Although that proposal fell short of the necessary two-thirds vote in the Senate, 21 states adopted no-funding provisions in the 35 years following the Blaine Amendment. Seeing a connection between the Blaine Amendment and the state no-funding provisions, detractors have sought to transfer the taint of anti-Catholicism from the former and use that to discredit the latter. They finally succeeded today.

What detractors usually fail to mention is that 15 states adopted no-funding provisions prior to the Blaine Amendment, with several arising in states with little or no discernible religious conflict. They also arose at a time that states were establishing their public schools and were seeking to guarantee the financial security of those fledgling schools. Several of the post-1876 provisions were based on these earlier state constitutions, not on the Blaine Amendment; the drafters of Montana’s provision borrowed from the California and Colorado constitutions. Finally, as we demonstrated in our amicus brief, there is a lack of evidence of anti-Catholic animus at the time Montana drafted its initial constitution. Thus, it is historically inaccurate to condemn all state no-aid provisions as remnants of anti-Catholic animus, as Alito does.

The majority and concurrences run roughshod over this historical record. While acknowledging that history is “complex,” those opinions provide a simplified, if not particularized, rendition of the 19th-century “School Question” controversy. All nuances about the development of nonsectarian schooling and its evolution into a more secular entity, and the multiple rationales for barring public funding of religious education – ensuring the financial stability of the fledgling public schools, public accountability, public control over school funds, and, oh yes, maintaining church-state separation – are lost in the Espinoza accounts of the history. Equally troubling is the justices’ presumption, if not hubris, that they can declare the significance of a historical development – particularly one that is contested – and then settle it as a constitutional rule. The judicial adversarial context is the worst place to discover the significance of a historical event.

So, what remains of the no-funding provisions in a majority of state constitutions?  The majority opinion effectively says they cannot be enforced, at least when they are directed at preventing aid based on the character or status of the recipient. As Breyer notes, one can interpret the language of these provisions as directed at use, not necessarily status, but most lower courts will read the majority opinion otherwise. So not only will most state no-aid provisions be unenforceable, but so likely will be no-compelled-support and public-control clauses, all of which make distinctions based on the status of the recipient. But more than anything, the majority and concurring opinions have now tainted all no-aid provisions, and the more general principle against government funding of religion, with the aura of discrimination. A central premise of non-establishment of religion has been turned on its head.

In 2014, the Arizona Supreme Court declined to review the Court of Appeals decision in Niehaus v. Huppenthal, No. 12-042 (Ariz. App. Ct., Div. One Oct. 1, 2013) (.pdf), upholding Arizona’s “pass-through” school voucher system. The Arizona Supreme Court effectively endorsed the Goldwater Institute’s legal legerdemain to effectively render two constitutional provisions null and void Sub Silentio. Arizona Courts disregard the Constitution, authorize the privatization of public education (excerpt):

The Arizona Court of Appeals and the Arizona Supreme Court have effectively rendered two provisions of the Arizona Constitution mere artifacts and Dead Letter Law:

Article 2, Section 12: “No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.”

Article 11, Section 7: “No sectarian instruction shall be imparted in any school or state educational institution that may be established under this Constitution, and no religious or political test or qualification shall ever be required as a condition of admission into any public educational institution of the state, as teacher, student, or pupil;”

Today’s U.S. Supreme Court decision in Espinoza is the final nail in the coffin.

UPDATE: in 2011, in another 5-4 decision with Justice Anthony Kennedy writing the majority opinion in Arizona Christian School Tuition Organization v. Winn, the court held that respondents lacked standing as taxpayers under Flast v. Cohen, 392 U. S. 83, to challenge Arizona’s tuition tax credit, as opposed to a governmental expenditure.

Justice Elena Kagan, in her first dissent, said the majority had laid waste to the doctrine of “taxpayer standing,” which allows suits from people who object to having tax money spent on religious matters. “The court’s opinion,” Justice Kagan wrote, “offers a road map — more truly, just a one-step instruction — to any government that wishes to insulate its financing of religious activity from legal challenge.” Supreme Court Allows Tax Credit for Religious Tuition.