Boston attorney Mike Gilleran, Vice-Chair of the Thomas More College Board of Trustees, is part of a team of lawyers working on a potential ground-breaking case which would help with funding of religious schools and even of home-schooling costs.
The United States Supreme Court has agreed to hear the case, Espinoza v. Montana State Dept of Revenue, in Washington before the full court on January 22, 2020. The specific issue in the case is the effect today of provisions in many state constitutions known as Blaine Amendments, named for Maine Congressman James Blaine and passed in the nineteenth century in many states. While state funds at that time were used to fund and teach a general form of Protestantism in what were known as “common schools,” the Blaine Amendments barred use of state funds for use in any “sectarian school,” which was simply code for Catholic school. There is overwhelming evidence that the Blaine Amendments were the product of such groups as the Know-Nothings, who knew for sure they hated Catholics and especially any form of Catholic education.
The precise issue now before the U.S. Supreme Court is whether the Blaine Amendments in many state constitutions can be used to bar state laws creating tax credits which are then given to a neutral scholarship-granting charity. Students attending any form of school, including a religious school, can then apply to that charity for a scholarship. In the Espinoza case, the Montana Department of Revenue held that its 1890 Blaine Amendment effectively barred use of the scholarship funds for any religious school.
The arguments in Espinoza center on whether such use of Blaine Amendments violates the Free Exercise of Religion Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The U.S. Supreme Court has already held that the Free Exercise Clause prohibits the denial of benefits generally available to the public based on religious status. Even just two years ago in the case of Trinity Lutheran, the Supreme Court held unconstitutional a Missouri policy “expressly discriminating against otherwise eligible recipients by disqualifying them from a public benefit because of their religious character.” The First Amendment and Fourteenth Amendments also contain a non-persecution principle barring any state action based on animus against religion; and the proof of anti-Catholic animus behind the Blaine Amendment is overwhelming.
Mr. Gilleran says that given governing Supreme Court case law and the current composition of the Court, the prospect of success before the Court is promising.