TWH – On June 30, 2020, the U.S. Supreme Court ruled in Espinoza v. Montana Department of Revenue, and held that the Montana law discriminated against religious schools. It ruled that if Montana provided funds or benefits to secular private schools, those same funds had to be made available to private religious schools.
Theoretically, this ruling could allow a Pagan school to receive those funds or benefits. The five conservative judges voted for the decision, and the four liberal judges voted against it.
TWH spoke about this decision with Canu, a lawyer and past First Officer of Covenant of the Goddess. He also serves as a High Priest of Beachfyre Coven, a Senior Seer in the House of Brigh Faery Seership Institute, and 3rd Degree Elder in the Georgian Tradition.
Implications of the decision for the Pagan community
According to Canu this decision could potentially benefit Pagans. It could provide “access to government aid programs that are otherwise available to similar private or religious organizations.”
Canu said that this decision should “allow Pagan organizations to participate in generally neutral government aid programs that other religious and private organizations benefit from.” Many other religion-based schools–Christian, Islamic, and Jewish–provide both general educational and religious instruction. Only those schools with a general curriculum as well as religious instruction would be eligible. Pagan schools with an exclusively spiritual focus would not be eligible for benefits under this decision.
Cherry Hill Seminary, Ardantane, and Circle Sanctuary have provided graduate and adult education like that of a seminary. Canu thought that schools like those three might possibly benefit from this decision. Other difficulties might exist, like the school would have to be organized as a school under its own state laws to benefit from this decision.
“For Pagan organizations, any vague standards for getting government aid are vulnerable,” Canu cautioned. Government officials and vocal citizens may harbor biases against Pagan beliefs and practices and vague standards could allow those prejudices to surface.
Canu was unaware of any state or federal program directly funding any Pagan group. He noted that tax benefits already accrue to those Pagan groups legally recognized as religious organizations.
Overview of Espinoza v. Montana Department of Revenue
This decision occurs in the ongoing political argument about “school choice programs,” which involve two policies: vouchers and tax credits.
Under a voucher type system, a state provides vouchers to parents to pay for education at private schools. Under a tax credit system, parents receive some type of tax credit for sending their children to private schools. The Montana law extended the tax credit system to fund a scholarship fund for low-income families. Both vouchers and tax credits function as “costs” to the state. The Huffington Post reported that twenty-nine states and Washington, D.C. have some type of voucher or tax credit system.
In 2015, Montana set up a tax credit program. Individuals or corporations would donate to a scholarship fund. In return, Montana would then provide those donors with tax credits. That fund would provide scholarships for low-income students to attend private schools.
Montana’s Constitution prohibits the state from providing benefits to religious groups. Three mothers with children at the Stillwater Christian School in Kalispell sued Montana for access to those scholarships. A trial court found for those mothers. Montana appealed that decision. In December 2018, the Montana Supreme Court reinstated the ban. The three plaintiffs then appealed to the U.S. Supreme Court.
Roberts wrote in Espinoza v. Montana Department of Revenue, No. 18-1195, “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.”
The New York Times reported that Justices Ginsburg and Kagan argued in their dissents that no discrimination currently existed. The Montana Supreme Court had ended any possible discrimination when it ended the program. “On that sole ground, and reaching no other issue,” Justice Ginsburg wrote, “I dissent from the court’s judgment.”
The “Blaine Amendments”
Members of the conservative majority interpreted this case in light of 19th Century law, called a “Blaine Amendment.”
Canu explained the history of Blaine amendments. In 1875, President Ulysses S. Grant proposed a constitutional amendment. That amendment would provide free public education and prohibit direct aid to religious schools.
According to Canu, Congressman James Blaine proposed an amendment to the US Constitution. That amendment barred any public funding of organizations controlled by a religious group. It had broad support and passed in the House.
However, it failed to achieve the necessary majority to pass in the Senate. Canu reported that while 38 states had passed such an amendment, at the time the Blaine Amendments were considered to be anti-Catholic and anti-immigrant by some.
The Los Angeles Times reported that Justice Alito invoked the Blaine amendment in his concurring opinion. He wrote that the Blaine amendments were “prompted by virulent prejudice against immigrants, particularly Catholic immigrants” and “had the backing of the Ku Klux Klan.”
The New York Times reported that Justice Kavanaugh had referred in oral arguments to Blaine Amendments. He had said that they were “rooted in grotesque religious bigotry against Catholics.”
Montana, however, rejected the argument that its law was a Blaine Amendment. It had enacted its current version in 1972.