Is Supreme Court Set to Decide on “Born of Bigotry” Blaine Amendments?

St. Isidore of Seville Catholic Virtual School v. Drummond

​The Supreme Court on Friday agreed to hear St. Isidore of Seville Catholic Virtual School v. Drummond to determine whether it violates the Free Exercise Clause to deny state funds to an online Catholic school solely because of their religious character. This is the latest in a string of cases in which the Court has had to push back on states’ unequal treatment of religious schools. It is also an opportunity to functionally invalidate the unconstitutional Blaine Amendments that litter many state constitutions. Above all, it is a chance for parents to reaffirm their right to choose schools that align with their values.
 
The Oklahoma Supreme Court ordered the state’s Charter School Board to rescind a contract with the Archdiocese of Oklahoma City and the Diocese of Tulsa to establish St. Isidore of Seville Catholic Virtual School. According to the court, the Board’s approval of public funding for a sectarian school violated the Oklahoma Constitution, the Oklahoma Charter Schools Act, and the Establishment Clause. As we wrote at the time, the opinion is “buttoned down, logical, and eminently overturnable,” relying on “that state’s version of a Blaine Amendment, a movement that gathered momentum when American politics was infected with anti-Catholic bigotry.”
 
Blaine Amendments in 37 states prohibit public funding for schools run by religious organizations. They were passed in an era when Catholics faced wanton discrimination in a largely Protestant America. Doubts as to their unconstitutionality were raised by the Supreme Court’s ruling in Espinoza v. Montana (2020), which found that state-based scholarship programs providing public funds for students to attend private schools cannot discriminate against religious schools under the First Amendment’s Free Exercise Clause. The Court, quite specifically, took the Blaine Amendments to the woodshed, writing that they were “born of bigotry.”  
 
Congress should end the revolving door of state defiance of clear judicial precedent by overriding the Blaine Amendments and reiterating that Espinoza and the similarly reasoned Carson v. Makin meant what they said and remain the law. The Court has plenty of reasons to overturn the Oklahoma ruling. Oklahoma Justice Dana Kuehn’s dissenting opinion spells them out:
 
“St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.”
 
Further, Judge Kuehn wrote:
 
“Contracting with a private entity that has religious affiliations, by itself, does not establish a State religion, nor does it favor one religion over another. Allowing St. Isidore to operate a charter school does not give it any preference over any other qualified entity, sectarian or otherwise.”
 
The Constitution’s prohibition of an established religion does not diminish the free exercise of religion. Religious schools must be free to apply for state funding to the extent that they meet mandated standards in English, math, history, science, and other subjects. Such allowances, in turn, will give more parents the opportunity to choose schools that reflect their values, the ultimate expression of the First Amendment.
 
We agree with Gov. Kevin Stitt, who said:
 
“This stands to be one of the most significant religious and education freedom decisions in our lifetime. I believe our nation’s highest court will agree that denying St. Isidore’s charter based solely on its religious affiliation is flat-out unconstitutional.”
 
Stay tuned.

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