Just in time for National School Choice Week, the Supreme Court recently heard oral argument in Espinoza v. Montana, a case that has important implications for parents who want the option to send their children to parochial schools.  At issue is a Montana program that gave state residents up to $150 in tax credit for donations to private scholarship organizations.

The Montana Supreme Court said the program violated a provision of the state constitution that forbids any state entity from making a direct or indirect payment to aid, among other things, sectarian schools. Like thirty-some other states, Montana’s constitution contains a “Blaine Amendment,” named after Sen. James Blaine who, in the 1800s, proposed a similar federal constitutional amendment.

The federal Blaine Amendment failed, but Congress nevertheless required many states to insert them into their own constitutions as a condition of statehood. As a plurality of the Supreme Court recognized in Mitchell v. Helms, these Amendments have a dubious, anti-Catholic history. As the Mitchell plurality acknowledged, religious discrimination was the point: “it was an open secret that ‘sectarian’ was code for ‘Catholic.’” 

Contrary to the arguments of their supporters, Blaine Amendments are not necessary to protect the boundaries between church and state. Rather, Blaine Amendments cobble on additional bricks on top of the federal wall between church and state. That is, although the federal Establishment Clause would not prohibit a state from allowing vouchers to be used at both private and sectarian schools, a state’s Blaine Amendment might. And of course there is the fact (inconvenient for Blaine Amendment supporters) that the First Amendment has two clauses. 

The plaintiffs in Espinoza argue that Montana’s Blaine Amendment violates the Free Exercise Clause because it discriminates against religious schools. The Free Exercise Clause protects religious individuals and institutions from unequal treatment. Just a few years ago, in a case called Trinity Lutheran, the Supreme Court held that Missouri’s application of its Blaine Amendment to deny playground mulch to a religious preschool simply because it was religious burdened the free exercise of religion. Under Trinity Lutheran, States must allow religious institutions to compete with secular ones. 

Although Trinity Lutheran involved playground mulch (and a now infamous footnote attempted to cabin the Court’s holding to “playground resurfacing”), its broad anti-discrimination principle is directly on point. As in Trinity Lutheran, the Montana Department of Revenue discriminated against otherwise eligible religious schools because of their religious character. This violates the Free Exercise Clause.

Perhaps seeing the writing on the Free Exercise wall, several of the so-called liberal justices repeatedly asked whether the parents had standing to challenge Montana’s application of its Blaine Amendment. According to Justice Sotomayor, because the donors received the tax benefit and the schools received the funds, the parents’ choice to send their children to private religious schools was “like three levels removed.” These questions, however, highlight yet another reason that the Montana scholarship program passes constitutional muster. 

The Supreme Court has long recognized the difference private choice can have in the Establishment Clause context. In Zelman v. Harris, for example, the Supreme Court described its prior decisions as having drawn “a consistent distinction between government programs that provide aid directly to religious schools” and programs where “government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.” Where aid flows to schools only as a result of the independent choice of a third party, it is clear that the state is not endorsing religion. As a result, third party choices that result in funds flowing to a religious institution do not offend the Establishment Clause.

In case after case, the Supreme Court has upheld state programs that rely on the individual choice of parents to direct funds to religious schools. In Mueller v. Allen, for instance, the Court upheld a Minnesota program authorizing tax deductions for private school tuition even though over 90% of the program’s beneficiaries were parents of children in religious schools. Analyzing the historic purposes of the Establishment Clause, the Court explained that attenuated financial benefits controlled by private choices were not implicated. So long as a state program ensures that parents are the ones to select a religious school as the best learning environment, the First Amendment is satisfied. Indeed, the Zelman Court noted that the Supreme Court had never found a program of private choice to offend the Constitution.

These cases make clear that whatever interest Montana might assert in going above and beyond the federal Establishment Clause, that interest is diminished where, as here, the private individual choices of parents direct the funds. A reasonable observer could not believe the state to have endorsed religion and any hyper-Establishment-Clause-vigilance does not justify discriminating against religious schools simply because they are religious.

In short, Blaine Amendments discriminate against religious schools simply because they are religious. As the Mitchell plurality wrote nearly twenty years ago, “hostility” to religious schools has no place in the First Amendment; the doctrine “born of bigotry, should be buried now.” 

Erin Hawley is the senior legal fellow at Independent Women’s Law Center and senior fellow at the Kinder Institute for Constitutional Democracy.