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Yes, it's time to end religious discrimination in Idaho's constitution

Updated: Jul 21, 2023

In the debate over education choice in Idaho, much has been made about the Blaine Amendment of Idaho's constitution.

"Neither the legislature nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian or religious society, or for any sectarian or religious purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever; nor shall any grant or donation of land, money or other personal property ever be made by the state, or any such public corporation, to any church or for any sectarian or religious purpose; provided, however, that a health facilities authority, as specifically authorized and empowered by law, may finance or refinance any private, not for profit, health facilities owned or operated by any church or sectarian religious society, through loans, leases, or other transactions."

Put simply, opponents of education choice have interpreted this to mean that parents can't use choice options provided by the state for private, religious schooling.

Roughly three-dozen states have similar Blaine amendments in their state constitutions. It’s worth noting the “shameful pedigree” and “clear manifestation of religious bigotry” that these amendments entailed when they passed. It is a disconcerting chapter of history, further intensified by education choice opponents’ vigorous defense of the provisions.

The way the argument goes, if the state were to set up a voucher program, where private schools are paid directly for student enrollment, some of those vouchers would go to religious schools, which would violate the Blaine Amendment. If Idaho’s constitution were the only factor at play, that might be the end it.

However, two recent U.S. Supreme Court cases have curtailed Blaine Amendment restrictions: Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022).

The Espinoza decision held that government attempts to exclude religious schools from public scholarship or tax credits are subject to strict scrutiny, meaning lawmakers must prove they have a “compelling interest” in restricting the free exercise of religion of scholarship or tax credit recipients. The Carson majority held that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause."

In other words, states cannot fall back on their Blaine Amendments to justify prohibitions on public funding of schools solely due to their religion. In addition, a state cannot discriminate against religious beneficiaries of public scholarships or tax credits by forbidding them from using those benefits at religious schools. As the Institute for Justice writes, “these obstacles to educational freedom are now largely a dead letter.”

Senator Brian Lenney of Nampa says he plans to put forward legislation repealing the amendment. The RS was on the Senate Education Committee schedule this week.

While we are still waiting to see the exact bill language, the effort to rid the state of this discriminatory amendment is long overdue.

As the Supreme Court of the United States writes in Carson v. Makin:

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