Supreme Court hears arguments on school choice law rooted in anti-Catholicism

The Supreme Court considered arguments on Wednesday on whether a state bar on public funding for religious groups is discriminatory, or protects them from state interference. At issue during the arguments was the anti-Catholic bigotry which informed the Montana law’s passage.

Oral arguments were heard Jan. 22 on the case of Espinoza v. Montana Department of Revenue, which involves the 1972 Montana state constitution’s prohibition on public funding of religious institutions.

At issue is a clause in Montana’s 1972 state constitution that goes back to its original constitution of 1889—forbidding public funding “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

In 2015, the Montana state legislature approved a scholarship program for low-income students where tax credits could be claimed for donations to a scholarship fund. The fund would help students attend private schools, including religious schools.

The state’s revenue department blocked the program, saying the state’s constitution barred public funding of schools of a “church, sect, or denomination” and ruling that the scholarships could only be used for secular schools.

In response, several parents sued the state to use the scholarships for religious schools and a Montana trial court ruled in their favor. The state supreme court reversed that decision in 2018, and struck down the program altogether. The case will be decided by the Supreme Court this term.

Opponents of the law say it violates the “Free Exercise” clause of the U.S. Constitution, unlawfully shutting religious groups out of neutral public benefits. They also say the original 1889 clause was passed during a time of anti-Catholic bigotry, to bar Catholic schools from funding that the largely Protestant public school system benefitted from.

During oral arguments on Wednesday, multiple exchanges focused on the Montana law’s roots in the anti-religious bigotry of the 1800s, and whether its inclusion in Montana’s 1972 constitution was a continuation of that bigotry.

“I mean, I think that in the 1880s, there was undoubtedly grotesque religious bigotry against — against Catholics,” said Adam Unikowsky, arguing on behalf of the Montana Department of Revenue.

“That was the clear motivation for this,” Justice Brett Kavanaugh replied.

“In the 1972 Constitution, which is where this provision was enacted, I don’t think there’s any evidence whatsoever of any anti-religious bigotry,” Unikowsky said.

Justice Sonia Sotomayor had earlier noted a “long history” of people opposing public funding of religious groups. She implied that Montana in 1972 no longer exercised the anti-Catholic bigotry of the 1800s but still chose to bar public funding of religion in line with the U.S. Constitution’s “Establishment Clause.”

Justice Samuel Alito asked how it wasn’t merely coincidental that laws such as Montana’s occurred in a time of anti-Catholic bigotry.

“I’m not going to get into an argument with you about what happened in 1972, but do you really want to argue that the reason why a lot of this popped up beginning, coincidentally, in the 1840s, at the time of the Irish potato famine, that had nothing to do with discrimination based on religion?” Alito asked.

The brief of the parents before the Supreme Court argued that three separate clauses of the U.S. Constitution—“[t]he Free Exercise, Establishment, and Equal Protection Clauses—all provide that government should be neutral, not hostile, toward religion.

“Prohibiting all religious options in otherwise generally available student-aid programs rejects that neutrality and shows inherent hostility toward religion,” the brief states.

On Wednesday, two leading U.S. bishops said the Espinoza case could decide the legitimacy of anti-religious discrimination in the U.S., and continue historic anti-Catholic bigotry.

Amendments such as Montana’s “were the product of nativism,” read a joint statement of Bishop George Murry of Youngstown, Ohio, the chair of the U.S. bishops’ religious freedom committee, and Bishop Michael Barber, S.J. of Oakland, California, the chair of the U.S. bishops’ education committee.

“They were never meant to ensure government neutrality towards religion, but were expressions of hostility toward the Catholic Church. We hope that the Supreme Court will take this opportunity to bring an end to this shameful legacy,” the bishops said.

After Wednesday’s oral arguments, Eric Baxter, senior counsel at Becket, tweeted that “the justices seemed to agree that excluding students just because they are religious is a clear violation of the Free Exercise Clause.”

Montana’s clause is one of 37 “Blaine Amendments” passed by states in the late 19th century. They are named for James Blaine, a former Speaker of the House (1869-1875), Senator (1876-1881) and Secretary of State (1889-1892) from Maine who pushed an amendment to the U.S. Constitution barring funding of “sectarian” causes and organizations.

At that time, opponents of the law say, Blaine’s effort mainly targeted Catholic schools and institutions. His amendment failed at the federal level but many states including Montana inserted similar language in their constitutions.

In a 2017 case, the Supreme Court in Trinity Lutheran Church of Columbia, Inc. v. Comer ruled that Missouri’s Blaine Amendment could not block a church-owned playground from applying for state renovation grants, simply on account of its religious status.

However, a concurring opinion from Justices Clarence Thomas and Neil Gorsuch warned that the Court’s language implied a very narrow ruling on “playground resurfacing” cases, and not on general cases of religious groups accessing public funds.

On Wednesday, Justice Elena Kagan distinguished between the Court’s Trinity Lutheran case—regarding access to a “completely secular public benefit” like playground resurfacing grants—and Montana’s case where the scholarship program could be considered by the state to “subsidize religious activity.”

Justice Stephen Breyer asked if government could provide police protection for all schools but not religious schools, to which Unikowsky answered that it would be unconstitutional to do so, under the Trinity Lutheran decision. However, he said, there was a difference between government “distinguishing among religions”—such as allowing access to benefits for Catholic schools but not Jewish schools—and simply removing itself “out of religion altogether.”

In 1972, religious leaders were some of the supporters of the “no-aid” clause, Unikowsky said, because they warned about “using government leverage to influence religious education.”

Kavanaugh replied that “a religious school that doesn’t want to be part of a neutral program doesn’t have to be.”

COMING UP: Colorado Catholic Conference 2021 Legislative Recap

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On June 8, the First Regular Session of the 73rd General Assembly adjourned. Over 600 bills were introduced this session. Policy primarily focused on transportation, agriculture, healthcare, fiscal policy, and the state budget. However, the legislature also considered and passed many bills that could impact the Catholic Church in Colorado.  

Some bills that were passed will uphold Catholic social teaching and protect the poor and vulnerable of our society while others pose potentially harmful consequences to the Catholic Church, its affiliated organizations, and Colorado citizens who wish to practice their well-founded convictions. There were also many bills that were considered by the legislature that did not pass, including two bills that would have upheld the sanctity of life and two that would have expanded education opportunity for K-12 students.  

The Colorado Catholic Conference (CCC), as the united voice of the four Colorado bishops, advocated for Catholic values at the Capitol and ensured that the Church’s voice was heard in the shaping of policy.  

Below is a recap of the CCC’s 19 priority bills from the 2021 legislative session. For a full list of the legislation the Conference worked on, please visit: https://www.cocatholicconference.org/2021-legislative-bills-analysis/  

For regular updates and other information, please sign-up for the CCC legislative network here.  

Six bills the CCC supported that were either passed or enacted

Note: Passed means the bill was approved by both chambers of the legislature and is pending the governor’s signature as of June 9, 2021. Enacted means the bill was signed by the governor and became law.  

HB 21-1011 Multilingual Ballot Access for Voters – Passed  
If enacted, counties where either 2,000 adults or 2.5% of the adult population primarily speak a language other than English will be required to provide a ballot in that language. 

HB 21-1075 Replace The Term Illegal Alien – Enacted 
With the enactment of HB 1075, the term “illegal alien” was replaced with the term “worker without authorization” as it relates to public contracts for services.  

SB 21-027 Emergency Supplies for Colorado Babies and Families – Passed  
If enacted, the state government will allocate much-needed funding for nonprofit organizations to provide diapers and other childcare necessities to families in need, including Catholic Charities.  

SB 21-077 Remove Lawful Presence Verification Credentialing – Enacted    
With the enactment of SB 77, verification of lawful presence will no longer be required for any applicant for a license, certificate, or registration, particularly in the job fields of education and childcare.  

SB 21-146 Improve Prison Release Outcomes – Passed  
If enacted, SB 146 will establish practices that ease the transition back into society for formerly incarcerated persons.  

SB 21-158 Increase Medical Providers for Senior Citizens – Passed  
If enacted, SB 158 will allocate more funding for senior citizen care, which is currently understaffed and underfunded.  

Eight bills the CCC opposed that were passed 


HB 21-1072 Equal Access Services For Out-of-home Placements – Enacted 
With the enactment of HB 1072, Colorado law now prohibits organizations that receive state funding for placing children with adoptive or foster parents from discriminating on, among other things, the basis of sex, sexual orientation, gender identity, gender expression, or marital status. This new law will likely to be impacted by the imminent Fulton v. City of Philadelphia U.S. Supreme Court decision. 

HB 21-1108 Gender Identity Expression Anti-Discrimination – Enacted 
With the enactment of HB 1108, “sexual orientation,” “gender identity,” and “gender expression” are now recognized as protected classes in Colorado nondiscrimination code. This may have serious religious liberty implications for individuals and organizations that wish to practice their well-founded convictions on marriage and human sexuality. 

SB21-006 Human Remains Natural Reduction Soil – Enacted 
With the enactment of SB 006, human remains can now be converted to soil using a container that accelerates the process of biological decomposition, also known as “natural reduction.” 

SB 21-009 Reproductive Health Care Program – Passed 
If enacted, SB 009 will create a taxpayer funded state program to increase access to contraceptives.  

SB 21-016 Protecting Preventive Health Care Coverage – Passed 
If enacted, the definition of “family planning services” and “family planning-related services” will not be clearly defined in law and could potentially include abortion. Furthermore, SB 16 removes the requirement that a provider obtain parental consent before providing family planning services to a minor.  

SB 21-025 Family Planning Services for Eligible Individuals– Passed 
If enacted, SB 025 low-income women to be given state-funded contraception, “preventing, delaying, or planning pregnancy” services, which includes cessation services and sterilization services.  

SB 21-142 Health Care Access in Cases of Rape or Incest– Enacted  
The enactment of SB 142 removes the requirement that, if public funds are being used, a physician must perform an abortion at a hospital, and instead allows for abortions to be performed by any “licensed provider.”   

SB21-193 Protection of Pregnant People in Perinatal Period– Passed 
If enacted, SB 193 will eliminate an important protection in Colorado law for a preborn and viable baby when a woman is on life support.  

Five bills the CCC supported that failed  

HB21-1017 Protect Human Life at Conception – Failed 
HB 1017 would have prohibited terminating the life of an unborn child and made it a violation a class 1 felony.  

HB 21-1080 Nonpublic Education and COVID-19 Relief Act – Failed 
HB 1080 would have established a private school and home-based education income tax credit for families who either enroll their child in private school or educate their child at home, thereby expanding education opportunities for families during and after the pandemic.  

HB 21-1183 Induced Termination of Pregnancy State Registrar – Failed 
HB 1183 would have required health-care providers that perform abortions to report specified information concerning the women who obtain the procedure to the state registrar of vital statistics, thereby increasing transparency in the abortion industry.   

HB 21-1191 Prohibit Discrimination COVID-19 Vaccine Status– Failed  
HB 1191 would have prevented individuals from being coerced to take the COVID-19 vaccine by either the state or by employers.  

HB 21-1210 Modifications to Qualified State Tuition Programs – Failed 
HB 1210 would have allowed families to use some of their private 529 savings account funds for private K-12 school tuition for their children, including at Catholic schools.   

One bill the CCC opposed that failed 

SB 21-031 Limits on Governmental Responses to Protests– Failed 
SB 031 would have made it more difficult for law enforcement to protect innocent lives when protests turn violent.  

Two bills the CCC was in an “Amend” position that passed  

SB 21-073 Civil Action Statute of Limitations Sexual Assault – Enacted  
With the enactment of SB 073, the statute of limitations on bringing a civil claim based on sexual misconduct will be removed as of January 1, 2022. Under this law, victims of sexual abuse can pursue a civil cause of action if the statute of limitations has not expired, the abuse happened in Colorado, and the abuse could be considered a felony or Class 1 misdemeanor if it was a criminal case. 

SB 21-088 Child Sexual Abuse Accountability Act– Passed  
If enacted, SB 88 will allow victims of childhood sexual abuse to sue public and private institutions for abuse that occurred between 1960-2022. Victims would have three years to bring a historical claim, starting from January 1, 2022. Claims brought during this window would be capped at $387,000 for public institutions and at $500,000 for private institutions, with the ability of a judge to double the damages depending on how the private institution handled the situation. Despite unanswered constitutional concerns regarding SB 88, the Colorado Catholic dioceses will also continue to offer opportunities for survivors of childhood sexual abuse to receive support in a non-litigious setting.   

While the legislature has adjourned the 2021 legislative session, there is still the possibility that they will reconvene later this year. To stay up-to-date on Colorado legislative issues and their impact on the Catholic Church in Colorado, be sure to sign up for the CCC legislative network HERE.