Prepare to be confused. This is a tough one.
The Supreme Court recently heard oral arguments in another government aid to religious schools case, this one from Montana. The Court has been wrestling with this issue since at least the 1940s. The Court still has not enunciated a bright line test or clear framework for deciding these cases. A number of factors have been cited over time, producing a mish-mash of results. For example, the government providing buses to take children to and from religious schools has been upheld, but not buses for field trips. Government money for administering standardized tests in religious schools is OK, but not for administering writing tests. The cases are all over the lot, just like the Court’s decisions in the Christmas display cases. Both situations involve the Court interpreting what is and is not an unconstitutional establishment of religion under the First Amendment to the U.S. Constitution. [Chemerinsky, Constitutional Law - Principles and Policies, 4th ed., pp. 1275-76]
At issue in the Montana case is a state tax credit program for people who donate to private schools. A state agency barred any of the donated money from ending up at religious schools, citing the so-called ‘Blaine Amendment’ in the state constitution which prohibits any direct or indirect aid to any school controlled by any church. The proposed Blaine Amendment to the U.S. Constitution was designed to deny any aid to religious schools. It passed the U.S. House in 1875, but failed in the Senate and never became law. However, 38 states including Montana adopted the provision in their own state constitutions. Much has been written about the motivation behind the Blaine Amendment - an attempt by bigoted anti-Catholic Protestants to deny aid to Catholic schools.
Montana is arguing that its Blaine Amendment “promotes religious freedom by preventing the government from using its leverage to dictate religious policy." It also protects the rights of people who don’t want to be forced to support a religion they don’t believe in.
The counter-argument is that it’s unconstitutional, as the Court has held, to deny a public benefit just because a church is involved. That would show impermissible hostility to religion. Justice Kavanaugh said something similar during oral arguments in the Montana case. He asked, if it’s OK to give a scholarship to students who are secular, how do you justify denying students scholarships just because they’re Catholic?
One legal expert predicted another narrow 5-4 decision limited to the specific facts of the Montana case that will clarify absolutely nothing and give very little guidance for the next case, just like the Christmas display rulings. A decision is expected by June.
My personal opinion, for what it’s worth, is that religious schools should not want to take any government aid, period. Where government money goes, government control follows. I’m not saying government money will have kids in religious schools praying to Chairman Mao tomorrow, but I am saying government money creates dependency and religious schools will eventually succumb to pressure to follow the government line on religion in subtle ways. Better not to get hooked on government money at all than to be subverted in ways you can’t anticipate.
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