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.[JM1]

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.

Today, they may seem like liberal walls between church and state. But 150 years ago, they were motivated by anti-Italian, anti-Irish, and overall anti-Catholic prejudice. (Even the word “sectarian” as opposed to “religious” was code for Catholic.)

For liberals, however, public funding of religious schools is blatantly unconstitutional.

Randi Weingarten, president of the American Federation of Teachers, said on a press call prior to the case that “it’s a total and utter perversion of the Constitution… to mandate support for a particular religion.”

The justices seemed divided at oral argument.

Justice Stephen Breyer seemed concerned that if the plaintiffs win here, states would have to radically restructure how they fund education. After all, isn’t it discrimination to fund public, secular schools more than private religious ones?

(Incidentally, RBG fans can take heart: Justice Ruth Bader Ginsberg was as lively and combative as ever, and focused on whether the Court should even be hearing the state constitutional challenge in the first place.)

But Justices Brett Kavanaugh, Samuel Alito, and Neil Gorsuch suggested that ruling for the plaintiffs wouldn’t represent such a radical change. Even if the no-aid amendments are wiped out, states would still be free not to fund private education in general. It’s only when states choose to fund some private education that they must make funding available to both religious and secular institutions.

Oddly, the practical result of that position isn’t very different from that of the Montana supreme court, which tossed out the program in toto. Except that the conservative justices’ position might well overturn 37 state constitutional amendments in the process.

Chief Justice John Roberts, working on very few hours’ sleep after presiding at the impeachment trial of the president, said a bit less than usual, though he did crack two jokes. But if the case splits on ideological lines, Roberts will again find himself as the deciding vote.

Which way will he go? Recent cases, including the 2017 case of Trinity Lutheran Church v. Comer, suggest he may favor the religious plaintiffs.

In Trinity Lutheran, Roberts was able to win over Justices Elana Kagan and Breyer, and the Court voted 7-2 to uphold a program that made state money available to private schools – religious and secular – for playground renovations. Chief Justice Roberts wrote the opinion narrowly, but his language still made clear that he views these cases as about discrimination against religious people, rather than public funding of religious organizations.

The First Amendment, he wrote, allows a state “to extend that public benefit to all its citizens regardless of their religious belief.” And denying funds to the religiously-affiliated school “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”

That would suggest a ruling for Espinoza and the other religious plaintiffs here. If this case is about discrimination, the plaintiffs win.