When the Supreme Court of the United States (SCOTUS) begins its term next week, one of the many important cases it will consider is that of Espinoza v. Montana Department of Revenue, which addresses Montana’s Tax Credit Scholarship program, and gives the high court an opportunity to decide whether Blaine Amendments (which generally prohibit any state money from going to a “sectarian” purpose) violate the establishment and free exercise clauses of the first amendment, as well as the and equal protection clause of the 14th Amendment. At the very least, the justices should rule on whether Blaine Amendments (like Section II-5 of the Oklahoma Constitution) can be used to exclude religious schools from school choice programs which insulate the state from direct subsidy of religious organizations through the “genuine, independent choice of private individuals.”

The question presented to the court is “Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.” In light of a 2017 decision holding that “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand,” the court seems poised rule against the state, and potentially to take the teeth out of Blaine Amendments nation-wide.

It appeared to many that Blaine Amendments, which were written primarily to discriminate against Catholics and other immigrants, would be struck down or significantly curtailed in 2017. But the Roberts Court has tended to move slowly, first signaling their willingness to consider or reconsider an issue, then deciding the first case narrowly before taking a second or third case where the issue is squarely before them. Though it is possible for SCOTUS to avoid the issue, either by writing another narrow opinion, or by dismissing the case as improvidently granted, it would appear that the school choice issue is teed up perfectly.

What does this mean for Oklahoma? Article II Section 5 of the Oklahoma constitution provides that “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.” This closely mirrors the language of Montana’s Blaine Amendment. The Oklahoma clause has been used to invalidate a bussing program that would take children to parochial schools, as well as to force the removal of a 10 Commandments monument from the state capital grounds.

A ruling that allows the monument to return to the capital seems unlikely, but it is entirely possible that states will have to open their school choice programs to all (qualified) schools, religious or otherwise. While Oklahoma has not barred religious schools from its Opportunity Tax Credit Scholarship and Lindsey Nicole Henry Scholarship programs, the threat of an overzealous court striking down the entirety of a hard-fought school choice program must give legislators pause as they decide how best to spend their political capital. A victory for school choice in Montana may be the starting gun for school choice legislation in Oklahoma and other Blaine Amendment states.

A dream scenario for school-choice and religious freedom proponents would be an opinion stating that state courts may not invalidate a generally available public program merely because religious organizations are also beneficiaries. While this would appear to be a loss for state’s-rights, it would be a win for liberty. States that want to discriminate against religion in generally available scholarship programs should feel their rights are being curtailed, as they do not possess such a power. What would happen if they applied the same logic to police and fire departments?

A murkier ruling for Espinoza et. al. (the mothers who want to used the scholarship fund to send their children to religiously-affiliated schools) could have a chilling effect on school choice. States may, if the opinion is not careful, face a choice where their state constitution says they must exclude religious schools, while the federal constitution demands that school choice programs include religious schools. The few states which have interpreted their Blaine Amendments broadly to prevent vouchers, tax credit scholarships, and educational savings accounts from being used at religious schools may feel that only by refusing any kind of school choice program may they avoid the tension between their two constitutions.

Oklahoma’s Solicitor General filed, on behalf of Oklahoma and several other states, a friend of the court brief that convincingly makes the case against this kind of decision. They insist that the Montana court cannot invalidate the entire choice program based on a state constitutional provision that flies in the face of the U.S. Constitution. The Supremacy Clause of the federal Constitution demands that other laws, even state constitutions, give way. The brief persuasively contends that neither excluding religious schools nor striking down the entire program (as the Montana court did) is permissible.

A clear ruling in favor of school choice would demonstrate that Blaine Amendments are inimical to the values of religious freedom, and are therefor unenforcible. Such a declaration would free the states to create school choice programs to unfetter students from failing public schools.

Mike Davis is Research Fellow at 1889 Institute. He can be reached at mdavis@1889institute.org.

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.