Blaine Amendments

Espinoza v. Montana Department of Revenue raises an issue the Supreme Court has long wrestled with:  if a state-aid program violates a state constitutional prohibition against mixing church and state because religious institutions may participate, does discontinuing that program violate the federal constitution’s Free Exercise or Equal Protection Clauses.

Montana statutes allow taxpayers to receive tax credits for contribution to Student Scholarship Organizations (SSO) that give students scholarships to attend private schools, including religious schools. The Montana Department of Revenue adopted Rule 1 disallowing religious schools to participate in the program because it concluded their participation would violate Montana’s constitution. Parents of students attending religiously-affiliated private schools challenged Rule 1.

There are two ways of looking at this case, both of which are hard to argue with: state aid to religious organizations means less money for secular causes, and all preschool students should have access to safe playgrounds no matter where they go to school.

In Trinity Lutheran Church of Columbia v. Pauley the Supreme Court will decide whether Missouri can refuse to allow a religious preschool to receive a state grant to resurface its playground based on Missouri’s “super-Establishment Clause.”    

The Missouri Department of Natural Resources (DNR) offers grants to “qualifying organizations” to purchase recycled tires to resurface playgrounds. The DNR refused to give a grant to Trinity Church’s preschool because Missouri’s constitution prohibits providing state aid directly or indirectly to churches.

The majority of the state constitutions contain “Blaine Amendments” or “super-Establishment Clauses” whose prohibitions against aid to churches and religious schools exceed the requirements of the federal Establishment Clause.