Religious conservatives asked the Supreme Court Wednesday to overturn 38 state constitutional amendments and require taxpayers to fund religious schools.
You read that right. The case, Espinoza v. Montana Dept. of Revenue isn’t about whether a state may fund religious schools through a school choice, voucher, or similar program. It’s about whether it must.And the conservatives might just win.At issue in the case, probably the most significant church-state case on the 2019-20 docket, is Montana’s “no-aid” amendment to its state constitution, which was revised and passed in 1972. Like similar amendments in 37 other states, it prohibits “direct or indirect funding” for any “sectarian purpose.”

In 2015, the state legislature passed a law that gave a tax credit of up to $150 for donations to a school scholarship program. But in 2018, the Montana Supreme Court struck down the program, saying it violated the 1972 constitutional provision.That’s when a group of religious organizations upped the ante. They went to the Supreme Court, seeking not just to reinstate the program but to toss out the “no-aid” amendment entirely – and, as a consequence, invalidate 37 similar amendments across the country.
That would open the floodgates to the funding of religious schools, especially since the plaintiffs argue that not funding them—previously the constitutional norm—is actually a form of discrimination.

As in many of these cases, how Espinoza looks depends on how you frame it.For conservatives, this is discrimination. If I want to send my child to a secular private school, I can receive funding (or a voucher, or a scholarship, or whatever). But if I want to send her to a religious one, I can’t.Moreover, the religious groups accurately note, “no-aid” amendments were originally passed in a wave of anti-Catholic, anti-immigrant animus in the 1870s and 1880s. They’re sometimes called “Blaine Amendments,” after Rep. James Blaine, a leading Republican[JM2] of his day who proposed a federal constitutional amendment banning such funding. That effort failed, but numerous “Baby Blaine” amendments passed on the state level.