Can the government deny funding to a school to make its playgrounds safer, just because the school is religious? Should former convicts be denied help integrating back into society, just because the helping hand is religious?
No reasonable person would prevent someone in need from accessing available help just because that help comes from a faith-based organization. But until recently, that was the case across the country, thanks to discriminatory state laws called Blaine Amendments, which prevented religious organizations from participating in widely available public programs on equal terms with all other organizations.
Named after Congressman James Blaine, Blaine Amendments were introduced over 100 years ago, when anti-immigrant and anti-Catholic bigotry were at an all-time high. Initially attempted as an unsuccessful amendment to the federal constitution and then spread to state constitutions, the amendments differed from state to state, but the purpose remained the same: to exclude Catholic influence from the predominantly Protestant public schools. These laws remain on the books in over half of the states, and they are now used to discriminate against any and all religions—not just Catholics. Because they originated in the context of a debate over education, many of them limit educational choices for children, including minority children, children in rural areas, and children with special needs. But their reach extends beyond schools—they have even been used to stop religious groups from helping prevent criminal recidivism.
The U.S. Supreme Court says that when the government forces an individual or organization to choose between its religious practice and a publicly available government benefit, it “punishe[s] the free exercise of religion.” That is why Blaine Amendments were long due for a reckoning in the Supreme Court—they were intended to discriminate against Catholics, and were being used to discriminate against all kind of religious Americans.
In June 2020, that Supreme Court reckoning came. The Supreme Court overturned a Montana State Supreme Court decision that relied on Montana’s Blaine Amendment to strike down a scholarship program. The Supreme Court reinstated the scholarship program, recognizing that Blaine Amendments were “born of bigotry.” That bigoted history means that Blaines are unconstitutional under the Free Exercise Clause and can no longer be used to exclude religious groups from government programs.
Becket led the fight to dismantle these discriminatory laws:
- Defending the right of learning-disabled students to attend religious schools through an Oklahoma state scholarship program in Kimery v. Broken Arrow Public Schools (2011) and Jenks v. Spry (2013).
- Protecting a Christian prison ministry in Florida from being shut down by an atheist group in Center for Inquiry v. Jones (2016).
- Giving underprivileged children equal access to a state-wide New Mexico textbook program in Moses v. Ruszkowski (2018).
Blaine Amendments at the Supreme Court:
- On June 30, 2020, the Supreme Court decided Espinoza v. Montana Department of Revenue, in which the Montana Supreme Court had struck down a tax credit scholarship program under Montana’s Blaine Amendment because some scholarships went to students attending religiously affiliated schools. Becket filed a friend-of-the-court brief in support of low-income parents, arguing that Blaine Amendments’ original discriminatory intent and their discriminatory application made them unconstitutional. The Supreme Court adopted Becket’s reasoning and reinstated the scholarship program. In a concurring opinion, Justice Alito cited Becket’s amicus brief multiple times.
- In 2016, Becket filed a friend-of-the-court brief in Trinity Lutheran Church v. Comer, in which the U.S. Supreme Court ruled 7-2 that the state of Missouri couldn’t deny a school access to generally available grants for resurfacing playgrounds, simply because the school has a religious mission.
- In 2010, Becket filed a friend-of-the-court brief in Arizona Christian School Tuition Organization v. Winn, a case concerning an innovative system that allows Arizonans to create scholarship pools for students attending private schools. In 2011, the Supreme Court ruled that the program was constitutional even though many of the funds would go toward scholarships for students attending religious schools.
- In 2003, Becket filed a friend-of-the-court brief in Locke v. Davey, a case regarding the constitutionality of a policy forbidding students in Washington from using state-funded scholarships for degrees in devotional theology. Concluding that the Washington law in question was not a Blaine Amendment, the Court unfortunately ruled in favor of the state.
- In 1999, Becket filed a friend-of-the-court brief in Mitchell v. Helms, a case regarding the constitutionality of a federal aid program that benefited both public and private schools. The Supreme Court ultimately reversed the decision of the U.S. Court of Appeals for the Fifth Circuit, which had wrongly concluded that the program violated the Establishment Clause by including religiously affiliated private schools.
Other Blaine cases:
- Meredith v. Daniels (Indiana Supreme Court, 2013)
- Magee v. Boyd (Alabama Supreme Court, 2015)
- Oliver v. Hofmeister (Oklahoma Supreme Court, 2016)
- Lopez v. Schwartz, Duncan v. State of Nevada (Nevada Supreme Court, 2016)
- Center for Inquiry v. Jones (Florida, 2016).
- Douglas County School District v. Taxpayers for Public Education (Colorado Supreme Court, 2017)
- Gaddy v. Georgia Department of Revenue (Georgia Supreme Court, 2017)
- Moses v. Ruszkowski (New Mexico Supreme Court, 2018)