The Supreme Court recently heard what could become a landmark case, Espinoza v. Montana Department of Revenue.

The concept of separation between church and state is a key part of the American democratic experiment. The phrase was first used by Roger Williams, the founder of the state of Rhode Island, when he claimed that “there should be a wall or hedge of separation” between what he viewed as the “wilderness of the world” and the “garden of the church” that God had created. Thomas Jefferson incorporated these ideas into the Virginia Statue for Religious Freedom, which was passed in 1786. This idea was further developed by James Madison when he wrote the Bill of Rights, and is enshrined in the First Amendment, which states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” This is commonly referred to as the “Establishment Clause.

However, what exactly separation of church and state entails has proven to be a difficult question to answer, and there have been a number of notable Supreme Court cases regarding the issue, such as Everson v. Board of Education and Lemon v. Kurtzman.

In Everson v. Board of Education, the Supreme Court decided that public funds could be used to provide transportation to students attending religious schools in New Jersey. Justice Hugo L. Black wrote the majority opinion, which stated that using tax dollars to assist parents in covering the cost of their children’s transportation to religious did not violate the Establishment clause. According to Black, “New Jersey cannot . . . exclude individual[s] . . . because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” 

The issue was further discussed in Lemon v. Kurtzman, where a unanimous Supreme Court Decision led to the adoption of the “Lemon Test,” which provides three steps to determining the constitutionality of laws related to the Establishment Clause. These three concepts are the secular purpose doctrine, the primary effects doctrine, and the excessive entanglement test. They stem from earlier Supreme Court decisions such as Abington School District v. Schempp and Board of Education v. Allen. 

According to the Court’s opinion deciding the outcome of the Lemon v. Kurtzman case, in order to pass the “Lemon Test” the statue “must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; and finally the statue must not foster an excessive government entanglement with religion.”

Blaine Amendments

Despite these cases and numerous others that have attempted to provide a clear constitutional consensus on the issue, this question is far from being answered completely. The Supreme Court recently heard what could become a landmark case, Espinoza v. Montana Department of Revenue. The case is still pending, and centers in part on a series of amendments to state constitutions in the late 1800s known as the Blaine Amendments. The Amendments are named after a Republican congressman from Maine named James Gillespie Blaine, who was the House Minority Leader during the 1870s and made it a personal crusade to ensure that state tax dollars did not unfairly aid religious institutions, namely Catholic religious institutions..

Blaine sought to codify his goals in a federal Constitutional amendment, which passed in the House of Representatives but failed to pass in the Senate. Nonetheless, many states added similar language to their state Constitutions. One of these states was Montana, the battleground for the Espinoza v. Montana Department of Revenue case.

The Blaine Amendments are not without opponents and have drawn criticism for supposed anti-Catholic bias. However, some still see them as an integral part of the wall of separation between church and State.

Tax Credits for Religious Schools

Back in 2015, when formulating the state’s tax-credit scholarship program, the Montana Department of Revenue decided that these scholarships could not be used to help student’s attend religious schools. Three mothers whose children attend Stillwater Christian School in Kalispell, Montana with the aid of these scholarships filed a lawsuit in Montana’s state court, which ruled that these scholarships were constitutional and did not compromise the wall between church and state. Later the state’s Supreme Court reversed the lower court’s decision, agreeing with the state’s Department of Revenue. The case was then brought before the United States Supreme Court.

A recent Supreme Court case that was frequently cited in oral arguments for the Espinoza v. Montana case is Trinity Lutheran v. Comer. This case involved a church in Missouri that was about to receive a grant from the state to fund the resurfacing of its playground until it was decided that the church could not receive the grant based upon language in the so-called “Blaine Amendment” to Missouri’s Constitution. In the end, the Supreme Court ruled that denying public benefits to religious institution solely based upon the religious nature of this organization’s activities was unconstitutional. This argument was later used to defend the stance of the petitioners in the Espinoza v. Montana case.

Discrimination Runs Rampant in Religious Schools Funded by Taxpayers’ Money

Stillwater Christian School makes no attempt to create an atmosphere of acceptance and diversity for its students and their families. The school’s Statement of Faith explicitly states that “We believe that God wonderfully and immutably creates each person as male or female, and that these two distinct, complementary sexes together reflect the image and nature of God”  as well as asserting that “we believe that God created marriage to be exclusively the union of one man and one woman, and that intimate sexual activity is to occur exclusively within that union.”

Countless other private Christian schools throughout the United States that are supported with public funds either through voucher programs, tax credits or other initiatives have similar discriminatory policies towards the LGBTQ community, but the hatred and barriers to access don’t stop there.

In addition to discriminating against LGBTQ students and families, many Christian school around the country that receive government support in one way or another have policies that restrict or deny students with special mental, intellectual and physical needs from receiving an education there. Trinity Christian Academy in Deltona, Florida received over 1.5 million dollars from the state’s voucher program in 2019. However, according to the school’s disability policy, “TCA [Trinity Christian Academy] only accepts those students who are ambulatory with no severe motor-control dysfunctions, including toileting.  Depending on severity, hearing or vision impaired students may not be accepted.  Students must have average intelligence with no emotional disorders or limited intellectual functions (such as Autism, Asperger’s, Down’s syndrome, etc.).”

Children with disabilities can thrive and prosper in a proper, welcoming and accommodating educational environment, but policies like these validate prejudiced and outdated ideas about people with disabilities and serve to further reinforce negative stereotypes while denying students the opportunity to succeed. This is especially concerning when institutions engaged in these types of practices are receiving support from the government.

A central part of the argument for separation of church and state revolves around the idea that taxpayers should not be required to finance institutions such as religious schools that support discrimination against certain groups or engage in other practices that individuals might not want their tax dollars to fund for moral and ethical reasons. The Supreme Court’s final ruling on the Espinoza v. Montana case could have a major impact on this idea, and many taxpayers might soon find themselves in a difficult position with regards to their conscience.

The Establishment Clause and the Future of Separation Between Church and State

If the Supreme Court rules in favor of the petitioners, the arguments they use to support their decisions could have far-reaching ramifications regarding the separation of Church and state and restrictions on public funds being used in a way that could be viewed as explicitly favoring certain religious ideas and activities. Depending on the language used in the final decision, a future where religious institutions and organizations are directly supported through tax dollars on all levels could be fast approaching. When the activities of these institutions involve actively engaging in discrimination against certain individuals and their allies, this tearing down of the wall separating government and religious activities becomes even more troubling.

The concept of separation of church and state is enshrined in the 1^st Amendment, but this is also where the petitioners in the Espinoza case and tax credits for religious schools draw their arguments from. They claim that by ruling that Montana’s tax credit program violated a provision of the state’s constitution stating that no public funds can be used to finance religious activities the state’s Supreme Court is violating the religious freedom guaranteed in the First Amendment as well as the Fourteenth Amendment’s Equal Protection Clause.

The Equal Protection Clause comes from the first section of the Fourteenth Amendment, and states that “no state shall… deny to any person within its jurisdiction the equal protection of the laws.” Essentially this means that governmental bodies cannot apply the law differently when dealing with individuals in comparable situations with similar context. The Equal Protection Clause forces state governments to govern impartially in a similar manner to which the Fifth Amendments’ Due Process Clause prevents the federal government from discriminating against certain individuals.

The Fourteenth Amendment was passed during the period of reconstruction following the Civil War and the end of slavery, and was drafted to ensure that black Americans, formerly enslaved and otherwise, would receive proper and equal civil and legal protection. As a result, the Equal Protection Clause has continued to be a crucial part of many landmark civil rights cases, most notably Brown v. Board of Education.

Nonetheless, at the end of the day the argument in the Espinoza v. Montana case comes down to the somewhat two-sided language of the First Amendment. Though Congress can’t make any laws that unfairly favor one religion over the other, it also cannot pass any legislation that prevents any individuals from practicing their religion freely. As demonstrated by the petitioners in the Espinoza v. Montana case, oftentimes individuals feel that their ability to participate in religious activities freely is in jeopardy when they are no longer able to do things like send their children to private religious schools using tax credits or vouchers that utilize taxpayer dollars.

The Supreme Court’s ruling in the Espinoza v. Montana case is still pending, but the final decision of this case will have huge ramifications for the way that paradigms of separation of church and state are viewed, especially with regards to education. The way in which American schools function, are funded and are organized has become a huge issue of political debate, and as the landscape of American education changes drastically court cases like Espinoza v. Montana will shape policy not only in the arena of education but also in countless other areas as well. Until then, the wall of separation between church and state stands on an unstable legal foundation.