The Blaine Amendments’ long, painful death continues. The Court’s reasoning announced today essentially means that the infamous amendments, which forbid states from using public funds to support religious institutions, almost always violate the Free Exercise Clause of the First Amendment—but given what the court declined to say — Blaine could potentially survive in extremely limited circumstances.
In a 6-3 decision for the court, Chief Justice Roberts—joined by Thomas, Alito, Kavanaugh, Gorsuch, and Barrett—did not eliminate the status versus use distinction but severely eroded it. Roberts concluded that simply labeling a restriction on funding to religious schools “use”-based did not offer it constitutional immunity. Instead, use-based restrictions also constitute religious discrimination and therefore must satisfy strict scrutiny: they must serve a compelling government interest and be narrowly tailored. Maine’s program did not meet that standard. He concluded that “there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.” Read more here.