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01/30/2020

Mark David Hall on Espinoza v. Montana Department of Revenue
Michael Ramsey

At Law & Liberty, Mark David Hall (George Fox University, Politics): Can Blaine’s Descendants Block School Choice?  From the introduction:

Last Wednesday, the United States Supreme Court heard oral arguments in Espinoza v. Montana Department of Revenue. The case has many moving parts, but at its core, it requires justices to determine if a state may discriminate on the basis of religion. The litigation centers on Montana’s Blaine Amendment—a constitutional amendment which forbids state funds from going to religious organizations; but this is a Blaine Amendment with an interesting twist.

Blaine Amendments: Born in Anti-Catholic Bigotry

In his wonderful book Separation of Church and State, Philip Hamburger demonstrates that anti-Catholic animus contributed significantly to the post-Civil War movement to separate church and state. As I have noted in this space, in the 19th century, this separation was usually between states and “sectarian” Catholic institutions and programs. “Non-sectarian” Protestant institutions and programs were largely exempt.

At the national level, the most notable manifestation of this anti-Catholic animus was the constitutional amendment proposed by Representative James Blaine (R-Maine) to prevent, among other things, public funding of schools “under the control of any religious sect.” Proposed in 1875, the amendment passed overwhelmingly in the House but did not receive the necessary two-thirds majority in the Senate. However, many states soon amended their constitutions to include similar amendments, and Congress sometimes required states admitted to the Union after 1875 to include Blaine Amendments in their constitutions. Such was the case with Montana.

...

There are excellent reasons to conclude that anti-Catholic animus was a driving force behind this amendment. But here is the twist: in 1972, Montana held a convention that revised its constitution, and the state’s voters approved it in the same year. In doing so, they reauthorized the amendment, adding only a line stipulating that it “shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.” There is little evidence that these convention delegates or voters were motivated by anti-Catholic animus.

I think Espinoza is a difficult case for originalists. But I also think speculation about the motives of the ratifiers of the original Montana constitutional amendment or its 1972 reenactment is unproductive and beside the point.  The question should be whether the Montana constitution actually "prohibit[s] the free exercise [of religion]." That does not turn on the motive of the provision; it turns on the effect.  If the provision prohibits the free exercise of religion, it is unconstitutional irrespective of its motive.  Similarly, if it does not prohibit the free exercise of religion, it is constitutional irrespective of its motive.