Supreme Court decision on Blaine Amendments a victory for religious freedom, school choice 

Aaron Lambert

In a potentially landmark decision for Catholic schools around the country, the Supreme Court on June 30 ruled against a Montana constitutional provision that barred taxpayer funds from going to parochial schools, effectively opening the doors for similar measures in the 37 other states that have such provisions.  

Chief Justice John Roberts wrote the final decision for the 5-4 vote in Espinoza v. Montana Department of Revenue, marking a long-sought victory for school choice advocates around the country. Chief Justice Roberts said that religious schools must be able to access public benefits if they are made available to secular private schools. 

“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” Roberts wrote. The Constitution “condemns discrimination against religious schools and the families whose children attend them,” he said. 

The provision in Montana’s state constitution prohibiting public funds from going to private schools was originally enacted in 1889 as a Blaine Amendment and was subsequently carried over into the state’s rewritten constitution in 1972. Blaine amendments have their root in 19th-century anti-Catholic bigotry and are currently included in 37 other states’ constitutions. 

Writing in support of Chief Justice Roberts’ decision, Justice Neil Gorsuch, who attended Christ the King Catholic School in Denver, reiterated Roberts’ view on discrimination but also emphasized that the protections afforded by the First Amendment are even broader than what Roberts described. Gorsuch stated that the Free Exercise Clause “protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly … Our cases have long recognized the importance of protecting religious actions, not just religious status,” implying the right for families of faith to send their children to faith-based schools if they so choose.  

Brittany Vessely, Executive Director of the Colorado Catholic Conference, lauded the decision and its empowerment of parents and urged Colorado state legislators to reconsider the school choice argument. 

“The Catholic Church teaches that parents ought to be able to choose schools that fit their conscience with their share of government funding – after 30 years of Blaine amendment suppression, parents are finally able to do just that,” Vessely said. “Now it is up to the Colorado legislature to pass school choice and empower parents to choose the best schooling option for their children.” 

Local Archdiocese of Denver leaders and Catholic school administrators were also encouraged by the decision, including Denver Catholic Schools Superintendent Elias Moo. 

[This] Supreme Court ruling is another step in the movement to ensure [that] the primacy of parents and families in the education of their children is honored and enshrined by the rule of law,” Moo said in a statement. “The legacy of the ‘Blaine Amendments’ has been a curse on our nation and the state of Colorado. For years, it has relegated families who seek non-public forms of education, especially faith-driven education, to second-class citizenry by limiting their freedom to pursue what is best for their children and family.  

“Today, the Supreme Court has made clear that true freedom is only realized when parents have all the means at their disposal to choose to send their children to the school that will best serve their children and align to their family’s beliefs and convictions.” 

Moo pointed out how the lack of school choice disproportionately affects low-income families and families of color, and how oftentimes, families “are stuck with either failing schools or putting their child’s educational future up to a game of chance by entering a lottery for an opportunity to enroll their child at a school outside of their neighborhood school.  

“This is a travesty, and I believe it is one of the greatest inequities and injustices that we are faced with today.” 

He echoed Vessely’s call for Colorado’s legislators to enact legislation that would allow for parents to have options when it comes to their child’s education. 

“I would personally make an appeal to our state legislators to consider the legacy they want to leave behind and consider the voters who elected them to office,” Moo said. “Our current legislators can be the generation that abolishes educational inequity and injustice. It will take courage and good will from members on all sides of the aisle, but what an opportunity, in a day and age when partisanship seems to be ruling the day at both the state and federal level, for the legislators of Colorado to come together to show the country a unity that it so desperately needs. How beautiful it would be for that unity to come through a bipartisan legislative effort for the children and families of our great state, in particular those most disadvantaged in our community.” 

Editor’s Note: An earlier version of this story misstated the local Catholic school Justice Neil Gorsuch attended. Justice Gorsuch attended Christ the King Catholic School in Denver. The story has been updated to reflect this. We apologize for the error.

COMING UP: Want school choice? Oppose the Blaine Amendment

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Want school choice? Oppose the Blaine Amendment

Intended against Catholic schools, amendment blocks public funding

Therese Bussen

On July 18, the Colorado Advisory Committee to the U.S. Commission on Civil Rights held a public briefing to examine the Blaine Amendment as a civil rights issue based on its discrimination against Catholics and freedom of school choice.

But the amendment is a nearly 150-year-old-law.

In 1875, a time when immigration was changing the face of the nation, the then-speaker of the House of Representatives, James Blaine, Republican U.S. Representative from Maine, proposed an amendment to the U.S. Constitution.

It may seem harmless on paper, but the intention behind the amendment — which passed in the House 180 to 7 and just missed passing in the Senate, only short by two votes — was to target Catholic schools and block them from government funding. While it didn’t pass federally, 38 states implemented this amendment.

Now known as the Blaine Amendment, the law states, “Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever.” Colorado Const. Art. IX, § 7.

“Sectarian”? Read: Catholic.

At the time that the amendment took effect, the country was faced with widespread immigration, especially from the Irish, who were predominantly Catholic.

This threatened the primarily Protestant Americans, who saw the Irish Catholics as anti-American as the immigrants began forming their own Catholic schools to avoid Protestant teaching.

According to writer Philip Hamburger in an article about the amendment, Blaine, who hoped to run for president, thought a good way to get votes would be to block these Catholic schools from government funding, calling them and any other religions that can’t partner with other religions in schools, “sectarian.”

In Douglas County, due to a Colorado Supreme Court ruling in 2015, students were blocked from receiving vouchers to attend private schools that met district criteria, which included some religious schools. Now due to the ruling, a clause was added to the state amendment, which bars “public moneys” from being given “in aid of any church or sectarian society.”

Jennifer Kraska, executive director of the Colorado Catholic Conference, attended the public meeting on July 18 among some other 50 people, she said.

The members of the committee were “well-split for or against,” according to Kraska and presented 10-minute descriptions on why they supported or opposed the amendment.

Kraska, along with Helen Raleigh, a member of the committee who brought the issue forward, believe that the Blaine Amendment is indeed a civil rights issue that discriminates against Catholics, particularly in the choice of education.

“It’s definitely a civil rights issue, because it affects a lot of people and especially a lot of children, and it’s something that gets glossed over, because people don’t know what it is or understand it,” Kraska said. “[Overturning the amendment would be] providing a choice for families and children, and to deny children that ability in all types of education settings is wrong.”

Raleigh, a writer who discovered the Blaine Amendment’s history while doing research for her book on immigration, The Broken Welcome Mat, wrote in a column, “Many people today probably are unaware of the discriminating nature of the Blaine Amendments.”

But upon discovering it, she saw clearly what needed to be done: Bring it back into the public eye.

“I learned that this law is rooted in anti-Catholic, anti-immigrant bigotry and it still impacts Colorado families today,” Raleigh told Denver Catholic. “So I brought it up to the Colorado Advisory Committee to the U.S. Civil Rights Commission. The Committee voted to investigate.”

The next steps, Kraska said, are to accumulate public comment on the issue in order to eventually bring it to legislature.

“The next steps are to provide an option for legislative movement to provide educational choice programs — we’d have a thriving voucher program in Douglas county and we could see that in other districts,” Kraska said. “It opens the door to more choices for schools that the amendment deems as ‘sectarian’ or religious.”

According to Raleigh, the public has 30 days from the meeting (until Aug. 18) to send comments to the committee to oppose or support the amendment; after that, the committee will gather the comments and interview small groups impacted by the amendment. Finally, they will produce a report, published at the federal level.

Raleigh is hopeful that something can be done to overturn the amendment, and the first step is getting the public’s interest.

“We had three of the speakers recognize [that this is a problem]. It’s a 150-year-old bigotry law and really impacts low-income families,” Raleigh said.

Comments may be sent to 1961 Stout Street, Suite 13-201, Denver, CO 80294 until Aug. 18.