The 1st Amendment Protects Religious Schools Too

By: Mitchell Rocklin and Howard Slugh

There is a persistent myth that the First Amendment requires a “separation of church and state” that prohibits the government from funding religious schools. Accepting this myth as true, some Jewish parents may have given up hope that they can receive government aid to help pay for their children’s tuition. Thankfully, however, this is simply not the case. The First Amendment does not prohibit the government from granting funding to religious schools, so long as it provides that aid on the same basis as it provides funding to secular schools. The Constitution may prohibit the government from giving religious institutions preferential treatment, but it certainly does not require treating religious people and institutions as second-class citizens by excluding them from benefits available to their secular neighbors. In fact, the Supreme Court is currently approaching the issue from the opposite perspective, considering whether it is permissible for a government to refuse to fund private religious schools if it chooses to fund private secular schools.

In Espinoza v. Montana Department of Revenue, the Supreme Court will evaluate whether the Constitution’s Free Exercise Clause permits state entities to discriminate against religious people because of their faith. In that case, the Montana Supreme Court held that a state constitutional provision known as a “Blaine Amendment” prohibited the state from creating a state scholarship program that allowed parents to use the funds to send their children to a private school (whether religious or secular) because of the possibility that parents might choose to send their children to private school. The plaintiff, Kendra Espinoza, wanted to use the scholarship program to send her daughters to a private religious school. She argued that the state’s Blaine Amendment violated the Federal Constitution’s promise to protect the Free Exercise of religion by forcing the state legislature to punish parents for being religious by excluding them from a state scholarship program that is open to parents wishing to send their children to secular private schools. The American Jewish community should support Espinoza in her lawsuit. Far too often, opponents of religious liberty are able to portray religious liberty issues as being solely a Christian concern. It is incumbent on the Jewish community to help reshape that debate by speaking out and making it clear that religious liberty is precious to Americans of all faiths.

If Espinoza prevails, the decision’s impacts will be felt in the thirty-seven other states that have similar Blaine Amendments. New York is one such state. These state constitutional provisions have a sordid history and harken to a time when Protestantism was taught in public schools and there was widespread suspicion of, and discrimination against, Catholics. The provisions were an attempt to suppress Catholicism by prohibiting funding to Catholic schools while, at the same time, allowing Protestantism to be taught in public schools. Indeed, the proponents of these provisions openly argued that state constitutional amendments were necessary in order to protect Americans as a “Protestant people.” The time has come to recognize that the “Blaine Amendments” are an affront to the federal Constitution’s guarantee of religious liberty for all.

To be clear, Espinoza is not arguing that Montana must fund private schools in the same manner as public schools. The state can choose not to fund private schools at all, in which case it would not be required to fund religious private schools either. Also, the state can apply nondiscriminatory criteria in order to ensure that all of the schools that participate meet certain objective educational standards. Espinoza is simply arguing that if the state chooses to fund private schools, it cannot exclude religious schools from funding programs simply because they are religious.

Espinoza’s position is supported by Supreme Court precedent. The Supreme Court recently indicated that excluding a religious organization “from a public benefit for which it is otherwise qualified, solely” because it is religious “is odious to our Constitution . . . and cannot stand.” It should be a matter of little controversy that the state cannot refuse to provide synagogues and churches with the same services it provides to secular organizations, like trash pick-up, and police and fire protection. But Blaine Amendments require exactly such discriminatory exclusion. The Montana Constitution would only allow the legislature to create a scholarship program if it excluded religious schools simple because of their religious status.

Various  Jewish organizations have supported Espinoza’s position. The Jewish Coalition for Religious Liberty (“JCRL”)—one of us serves as General Counsel and the other is the President—filed a “friend of the court brief” highlighting the harms that Blaine Amendments impose on Jewish parents. The JCRL brief explained that many observant Jews view religious schooling as essential for preparing their children to successfully function within the Jewish community. Such schools also play an important role in allowing Jewish children to observe Jewish rituals—including holidays and kosher laws—without unduly burdening their schooling. The brief went on to explain that such schooling is very expensive—with costs often ranging between $20,000 and $30,000 per year. As JCRL explained to the Court, this is a great concern for any Jewish parent who sends a child to a private religious school. Finally, JCRL stressed that striking down Blaine Amendments could play an important role in allowing for state financial aid that would alleviate this hardship.

JCRL was not alone in supporting Espinoza’s position. Agudath Israel submitted a brief indicating that “the Constitutional principle that this case could establish . . . has great significance” for” the Jewish community because it could make it more affordable for Jewish parents in many states to send their children to religious schools. The Executive Vice President of the Orthodox Union explained that a ruling in favor of Espinoza would “solidify the long-term beneficial impact” of many state aid programs that the organization had supported.

But this is by no means only an issue for Jews who send their children to private religious schools. All Jews, even those who most strongly advocate for the principle of government neutrality toward religion, should support striking down Blaine Amendments. There is no conceivable definition of neutrality under which religious schools must be treated less well than secular ones simply because they happen to be religious. Such a position represents nothing other than discrimination against religious people. It is well past time to put to bed the pernicious myth that the United States Constitution requires states to engage in the type of anti-religious bigotry promoted by James Blaine in the 19^th Century. It is time to replace that myth with the true and inclusive message of the First Amendment, which prohibits the government from coercing Americans’ religious beliefs or practices and protects religious liberty for all.

About the Authors: Rabbi Mitchell Rocklin is the President of the Jewish Coalition for Religious Liberty. Howard Slugh is the General Counsel of the Jewish Coalition for Religious Liberty.