Trent England | June 30, 2020

Bigots lose, school choice wins, today at Supreme Court

Trent England

Religious bigotry is one reason we have “public schools” in the United States. Government-run schools with compulsory attendance were developed as a tool to wipe out minority religious views. That conflict continues, and today the Supreme Court sided with religious minorities in a dispute that arose in Montana but that also helps protect a program in Oklahoma.

In the 19th century, religious minorities asked for equal treatment of their own schools—the same support for all schools. Bigots fought back, imposing bans on taxpayer support for “sectarian” schools. These laws were understood to allow taxpayer dollars to fund government-run schools that taught locally acceptable strains of Protestant theology, but to ban support for anyone else (see this Commission on Civil Rights report, pages 6-7). 

One of the leading anti-Catholic bigots of the time was Maine Congressman James Blaine. Eventually, state constitutional provisions banning support for religious schools (other than the government’s religious schools) became known as Blaine Amendments. Montana has one (also called a “no-aid provision,” because it says there shall be no aid “to sectarian schools”), and the Oklahoma Constitution has very similar language.

In both Oklahoma and Montana, conservative legislators looking to return some power to parents and communities have set up scholarship tax-credit programs. The programs encourage private donors to contribute to scholarships that support lower-income students attending private schools. The money is private, but the state does give the donors a tax break.

Opponents of such programs include those who want the government to maintain as much power as possible over the next generation, those who profit from expensive government school systems, and—as always—bigots who oppose the religious minorities involved in many private schools. There is a lot of overlap between these groups, and there are few limits to how far they will go. In Oklahoma, they sued to stop children with disabilities from attending schools that provide them with special services—simply because of the schools’ religious affiliations. Thankfully, the bigots lost.

The bigots lost again today. Chief Justice John Roberts, in his opinion for the majority of the Supreme Court, writes:

The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” …

Because the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school, the “strictest scrutiny” is required. …

Drawing on “enduring American tradition,” we have long recognized the rights of parents to direct “the religious upbringing” of their children. Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. But the no-aid provision penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason. …

Given the conflict between the Free Exercise Clause and the application of the no-aid provision here, the Montana Supreme Court should have “disregard[ed]” the no-aid provision and decided this case “conformably to the [C]onstitution” of the United States. That “supreme law of the land” condemns discrimination against religious schools and the families whose children attend them. They are “member[s] of the community too,” and their exclusion from the scholarship program here is “odious to our Constitution” and “cannot stand.” (All citations omitted.)

Trent England David and Ann Brown Distinguished Fellow

Trent England

David and Ann Brown Distinguished Fellow

Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.

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