# Espinoza v. Montana Department of Revenue (2020) **591 U.S. 464** — the SCOTUS decision that **federally invalidated state Blaine Amendments** as applied to tax-credit-scholarship programs. Decided 5-4 by the Roberts Court on June 30, 2020. Montana created a tax-credit-scholarship program (modeled on Florida and Arizona templates) that allowed donations to scholarship-granting organizations to fund private-school tuition for low-income students. The Montana Supreme Court struck down the program as it applied to religious schools, citing Montana's state-constitutional "no-aid" provision (a Blaine Amendment). The Roberts majority held that **a state cannot exclude religious schools from a state-funded scholarship program solely because they are religious** — the Free Exercise Clause prohibits such status-based discrimination, and a Blaine Amendment cannot be used to enforce it. The decision **federally collapsed** the legal force of the 37 state Blaine Amendments that had historically been the major state-level barrier to religious-school voucher programs. The [[Institute for Justice]] represented the parent plaintiffs. *Espinoza* was the second installment in the *[[Trinity Lutheran v. Comer]]* → *Espinoza* → *[[Carson v. Makin]]* doctrinal arc that shifted the constitutional baseline from "states **may** fund religious schools" to "states **must** include religious schools in generally available programs." ## Lower Court History Montana's tax-credit-scholarship program was created in 2015. The Montana Department of Revenue adopted an administrative rule excluding religious schools from the program, citing the state constitution's no-aid clause. Parents of students at Stillwater Christian School challenged the exclusion. The case reached the **Montana Supreme Court**, which took a striking approach: rather than rule on whether religious schools could be included, it **struck down the entire program** — reasoning that if religious schools couldn't constitutionally be excluded, the only way to comply with both the state and federal constitutions was to eliminate the program for everyone. This "scorched earth" approach — destroying a benefit for all rather than extending it to religious institutions — became the central issue at the Supreme Court. Roberts's majority opinion held that Montana couldn't use its Blaine Amendment to justify eliminating a program simply to avoid including religious participants. ## The Decision: 5-4 | Justice | Position | Notes | |---------|----------|-------| | **Roberts** (majority) | Wrote opinion | Blaine Amendments cannot justify religious exclusion | | **Thomas** | Concurrence | Would go further; questioned Establishment Clause incorporation | | **Alito** | Concurrence | Detailed the anti-Catholic history of Blaine Amendments | | **Gorsuch** | Concurrence | Reiterated that status/use distinction is unworkable | | **Kavanaugh** | Joined majority | | | **Ginsburg** | Dissent | Case was moot; program no longer existed | | **Breyer** | Dissent | Plurality of approaches to church-state issues should be permitted | | **Sotomayor** | Dissent | States have sovereign interest in non-establishment | | **Kagan** | Dissent | Joined Ginsburg on mootness; Breyer on merits | ### Alito's Concurrence: The Blaine History Alito wrote separately to document the **anti-Catholic origins** of Blaine Amendments in extensive detail — the nativist Know-Nothing movement, the Grant administration's support for the Blaine Amendment, the Protestant domination of "nonsectarian" public schools that were nonsectarian only in the sense that they were generically Protestant rather than specifically Catholic. This historical argument became a rhetorical weapon for the school-choice movement: defending Blaine Amendments meant defending provisions rooted in religious bigotry. ### The Dissents **Ginsburg** argued narrowly that the case was moot — since Montana's Supreme Court had eliminated the program entirely, there was no program left to include or exclude anyone from. **Breyer** argued more broadly that the Establishment Clause permits — indeed encourages — a plurality of state approaches to church-state funding questions, and that the majority's rigid rule was inconsistent with America's diversity of religious traditions. **Sotomayor** maintained her *Trinity Lutheran* position: states have a sovereign interest in maintaining non-establishment of religion, and the Free Exercise Clause does not require states to fund religious institutions. ## The Blaine Amendment Impact *Espinoza* was the case that **federally neutralized** the primary state-level barrier to school-choice expansion. Before the decision, **37 states** had Blaine Amendment-style provisions, of which approximately **14 had been strictly applied** to exclude religious institutions from state funding programs. After *Espinoza*, these provisions could no longer be used to justify excluding religious schools from generally available scholarship or voucher programs — though they remained on the books in most states. The practical effect was immediate: school-choice advocates could now challenge religious-school exclusions in every state with a Blaine Amendment, and state legislatures considering new voucher or ESA programs no longer needed to worry about state-constitutional barriers to religious-school inclusion. ## The IJ Strategy The [[Institute for Justice]] deliberately chose the Montana case as the vehicle for dismantling Blaine Amendments — a state with a strong no-aid provision, a clean factual record (parents of students at an accredited Christian school denied scholarship access), and a legal landscape where the Montana Supreme Court's dramatic remedy (destroying the program entirely) made the stakes viscerally clear. IJ senior attorney [[Tim Keller]] argued the case before the Supreme Court. *Espinoza* was the second move in IJ's planned three-case sequence: *Trinity Lutheran* established that religious-status exclusions violate the Free Exercise Clause → *Espinoza* applied that principle to Blaine Amendments and school funding → *[[Carson v. Makin]]* would extend it from religious status to religious use. Each case was selected to advance the doctrine one step at a time. ## KB Significance *Espinoza* is the **hinge case** in the school-choice legal arc. It took the principle established in *Trinity Lutheran* (states can't exclude based on religious identity) and applied it to the specific legal infrastructure — Blaine Amendments — that had been the school-choice movement's primary obstacle for two decades. By neutralizing 37 state constitutional provisions in a single decision, *Espinoza* opened the floodgates for the state-level ESA and voucher wave of 2023–2025, when more than 30 states enacted or expanded school-choice programs. The case also illustrates how a multi-decade litigation strategy, coordinated across organizations ([[Institute for Justice]], [[Alliance Defending Freedom]], [[Becket Fund]]) and funded by the same donor network ([[Bradley Foundation]], [[Walton Family Foundation]], [[Koch Network]]), can systematically reshape constitutional law. ## See Also - [[Trinity Lutheran v. Comer]] — Established the principle *Espinoza* applied - [[Carson v. Makin]] — Completed the arc; extended from status to use - [[Zelman v. Simmons-Harris]] — The foundational case; established "may fund" - [[St. Isidore Catholic Charter Case]] — The next frontier - [[Institute for Justice]] — Litigated the case; part of planned three-case strategy - [[School Choice Ecosystem]] — The movement - [[School Choice]] — The concept