The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Wednesday, the Supreme Court heard oral arguments in Espinoza v. Montana Department of Revenue, a constitutional challenge to Montana's state constitutional Blaine Amendment, which forbids the use of public funds to pay for instruction at any religious school. The plaintiffs argue that Blaine Amendments are unconstitutional because they discriminate on the basis of religion. One way in which they do so is by barring religious schools from receiving public funds and benefiting from vouchers given to students even though otherwise similar secular schools remains eligible to do so. But another reason is that the various state Blaine Amendments were enacted in the late 19th century as part of a wave of anti-Catholic bigotry.
On their face, the Montana Blaine Amendment and its cousins enacted in numerous other states are neutral as between different religious groups. They ban "any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination." But, in reality, the main motive behind them was specifically to prevent Catholic schools from receiving any form of state assistance, even as public schools routinely promoted Protestantism in various ways.
For years, conservatives have argued (correctly in my view) that this bigoted motivation makes Blaine Amendments unconstitutional. This issue also features prominently in the briefs and oral argument in Espinoza. For example, Justice Brett Kavanaugh, a longtime critic of Blaine Amendments, emphasized during the oral argument that these laws were "rooted in—in grotesque religious bigotry against Catholics." The Trump administration's amicus brief in the Espinoza case points out that "the Blaine provisions have 'a shameful pedigree' and were 'born of bigotry'"as a way of distinguishing them from other limitations on state funding for religious education that the Supreme Court had previously upheld. By contrast, liberal defenders of the Blaine Amendments argue that the bigoted motivations behind their enactment should not lead to their invalidation under the First Amendment and Equal Protection Clause today.
At the same time, however, most conservatives vehemently rejected scrutiny of decision-maker motives in the 2018 travel ban case, despite the fact that Trump's anti-Muslim motivation for barring citizens of several Muslim-majority nations from entering the US, was at least as blatant as the anti-Catholic bigotry behind the Blaine Amendments. The alleged security rationale for the travel ban was a transparent fraud.
In a recent speech before the Federalist Society, Attorney General William Barr used the travel ban and other cases against his administration as examples of how courts should not be allowed to scrutinize political decision-makers motives. Yet, for some reason, the Attorney General failed to instruct administration lawyers to avoid motive-based arguments in their amicus brief in Espinoza.
Many liberals display similar inconsistency in reverse. They were outraged (correctly in my view) when the Court refused to give more than minimal consideration to Trump's bigotry in the travel ban case. But they would like the justices to overlook the motivations behind the Blaine Amendments.
Cynics might say that all of this is really just a matter of whose ox is being gored. Many conservatives are willing to turn a blind eye to religious bigotry when the targets are Muslim refugees and would-be immigrants. Many on the left are happy to do the same when the likely result of striking down Blaine Amendments would be to allow school choice programs that include theologically conservative religious schools that promote values many on the left dislike, or even abhor.
Such cynicism may well be justified in some cases. But I hold out hope that many of those who hold such contradictory attitudes do so in large part because they simply haven't considered the possibility that there is a tension between their views on the travel ban case and their positions on Espinoza. More careful reflection might perhaps lead them to reconsider.
One possible way to resolve the contradiction is to take Bill Barr's position more seriously than he seems to do himself, and consistently abjure judicial consideration of the motives behind government policies. If a law or regulation does not discriminate on its face, that it must be upheld. But doing so would open the door to bigoted and discriminatory government policies on a wide range of fronts, and would undermine effective enforcement of numerous constitutional rights.
Like Noah Feldman, I instead advocate that courts should allow consideration of motives in both cases, and consistently strike policies that were enacted for constitutionally impermissible purposes, and the evidence indicates they would not have been put in place otherwise. I outlined the reasons why in some detail in my 2018 post on this subject, and in various other writings on the travel ban case, and its relationship to religious liberty claims favored by conservatives, such as the Masterpiece Cakeshop case decided just before the travel ban ruling. Elsewhere, I have also rebutted claims that immigration policy, as in the travel ban case, should be exempted from scrutiny of illicit motives that applies to government policies in other areas.
Judicial review should be a strong bulwark against religious discrimination by the state regardless of whether the victims are Muslim migrants (the travel ban), Catholics (the Blaine Amendments), or theologically conservative Protestants (Masterpiece Cakeshop). And bigoted policies should be struck down regardless of how the left and the right may feel about the groups they target. We have not yet fully realized this ideal, and all too many people seem willing to ignore it when it seems convenient to do so. But it doesn't have to be that way.
NOTE: The plaintiffs in the Espinoza case are represented by the Institute for Justice, which which I have a longstanding relationship, and which I have done pro bono work for in a number of other cases. I do not, however, have any involvement in this one.