Amicus Curiae Brief — Kendra Espinoza, et al., Petitioners v. Montana Department of Revenue, et al.

No. 18-1195

IN THE

Supreme Court of the United States

_________

KENDRA ESPINOZA, JERI ELLEN

ANDERSON, and JAIME SCHAEFER,

Petitioners,

v.

MONTANA DEPARTMENT OF REVENUE,

and GENE WALBORN, in his official

capacity as DIRECTOR of the

MONTANA DEPARTMENT OF REVENUE,

_________

Respondents.

On a Writ of Certiorari to the

Montana Supreme Court

_________

BRIEF OF AMICUS CURIAE MONTANANORTHERN WYOMING CONFERENCE,

UNITED CHURCH OF CHRIST

SUPPORTING RESPONDENT

_________

PATRICIA E. ROBERTS

WILLIAM & MARY LAW

SCHOOL APPELLATE AND

SUPREME COURT CLINIC

P.O. Box 8795

Williamsburg, VA 23187

Telephone: 202-759-6925

tjbreckenridge@wm.edu

TILLMAN J. BRECKENRIDGE*

PIERCE BAINBRIDGE BECK

PRICE & HECHT LLP

601 Pennsylvania Ave., NW

Suite 700S

Washington, DC 20004

Telephone: 202-843-8342

tjb@piercebainbridge.com

*Counsel of Record

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

BRIEF OF AMICUS CURIAE ................................... 1

INTEREST OF AMICUS ........................................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT .............................................................. 3

I.

PETITIONERS ASK THIS COURT TO

DEVIATE FROM PRECEDENT TO

INVALIDATE MONTANA LAW BASED

ON NONEXISTENT MOTIVATION .................. 3

A. Broad legislative motivation is only

considered in facial challenges ........................ 3

B. Legislative or administrative motivation

must be directed at a challenger’s

religious beliefs in as-applied, religion

cases, and it was not here. .............................. 6

II. ARTICLE X, SECTION 6 OF THE 1972

MONTANA CONSTITUTION DOES NOT

EMBODY ANTI-CATHOLIC ANIMUS .............. 9

A. The 1889 Montana predecessor

amendment was not enacted with

improper purpose ............................................. 9

B. Any purported improper purpose was

cleansed with the 1972 re-enactment of

the Montana constitution. ............................. 12

CONCLUSION ......................................................... 16

.

ii

TABLE OF AUTHORITIES

Cases

Arizona v. California, 283 U.S. 423

(1931) ........................................................................3

Bd. of Educ. of Cincinnati v. Minor, 23

Ohio St. 211 (1872) ................................................10

Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520 (1993) ......................5

Daniel v. Family Sec. Life Ins. Co., 336

U.S. 220 (1949).....................................................3, 6

Edwards v. Aguillard, 482 U.S. 578

(1987) ........................................................................5

Emp’t Div. v. Smith, 494 U.S. 872 (1990) ..................7

Epperson v. Arkansas, 393 U.S. 97

(1968) ........................................................................3

Fletcher v. Peck, 10 U.S. (6 Cranch) 87

(1810) ........................................................................3

Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n, 138 S. Ct. 1719 (2018) ..................6

Romer v. Evans, 517 U.S. 620 (1996) .........................5

State, ex rel. Chambers v. Sch. Dist., 472

P.2d 1013 (Mont. 1970)..........................................15

Thomas v. Review Bd. of Ind. Emp’t Sec.

Div., 450 U.S. 707 (1981) .........................................7

Trinity Lutheran Church of Columbia,

Inc. v. Comer, 137 S. Ct. 2012 (2017).....................7

U.S. Dep’t of Agric. v. Moreno, 413 U.S.

528 (1973) .................................................................5

iii

TABLE OF AUTHORITIES

(CONTINUED)

United States v. Lee, 455 U.S. 252 (1982)..................7

United States v. O'Brien, 391 U.S. 367

(1968) ........................................................................5

United States v. Windsor, 570 U.S. 744

(2013) ........................................................................4

Statutes

The Enabling Act of 1889, 25 Stat. 676

(1889). .....................................................................11

Other Authorities

1971-72 Montana Constitutional

Convention Verbatim Tr., vol. II. .................... 12, 13

1971-72 Montana Constitutional

Convention Verbatim Tr., vol. VI .............. 13, 14, 15

Brandon L. Garrett, Unconstitutionally

Illegitimate Discrimination, 104 Va. L.

Rev. 1471 (2018) ......................................................4

Caleb Nelson, Judicial Review of

Legislative Purpose, 83 N.Y.U. L. Rev.

1784 (2008) ...............................................................4

Douglas F. Johnson, Freedom of

Religion: Locke v. Davey and State

Blaine Amendments (2010). ............................ 10, 11

Elijah L. Milne, Blaine Amendments and

Polygamy Laws: The Constitutionality

of Anti-Polygamy Laws Targeting

Religion, 28 W. New Eng. L. Rev. 257

(2006) ......................................................................10

iv

TABLE OF AUTHORITIES

(CONTINUED)

G. Alan Tar, The Montana Constitution:

A National Perspective, 64 Mont. L.

Rev. 1 (2003) ..........................................................12

John Hart Ely, Legislative and

Administrative Motivation in

Constitutional Law, 79 Yale L.J. 1205

(1970) ........................................................................4

Mark Edward DeForrest, An Overview

and Evaluation of State Blaine

Amendments: Original, Scope, and

First Amendment Concerns, 26 Harv.

J.L. & Pub. Pol’y 551 (2003). .................................11

Michael P. Dougherty, Montana’s

Constitutional Prohibition on Aid to

Sectarian Schools: “Badge of Bigotry”

or National Model for the Separation

of Church and State, 77 Mont. L. Rev.

41 (2016). .............................................. 11, 12, 14, 15

Stillwater Christian School,

https://www.stillwaterchristianschool.o

rg ..........................................................................7, 8

1

BRIEF OF AMICUS CURIAE

Amicus curiae respectfully submits this brief in

support of the Respondents, the Montana Department

of Revenue and Gene Walborn, urging that the Court

affirm the Montana Supreme Court.

INTEREST OF AMICUS

The Montana-Northern Wyoming Conference,

United Church of Christ is an alliance of Christian

churches.1 The Conference represents unity among

several churches in Montana and Northern Wyoming.

Together and in partnership with other organizations,

the Conference advocates for human rights, children

and families, and economic justice. We recognize and

fulfill our mission and duty to spread the Gospel and

to develop Christ’s following.

As part of our justice advocacy, we believe in

expanding equity in public education. Public education represents a universally available and publicly

accountable means of educating our society’s children.

By contrast, private school alternatives— particularly

those supported by public funding—do not serve the

goal of increasing access to quality education for the

poorest and most vulnerable children. Publicly funding private schools siphons money from public

education, while providing inadequate access for poor

children. And, unlike public educational institutions,

private educational institutions lack public account1 No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than the amicus curiae or their counsel made a monetary

contribution to its preparation or submission. The parties have

consented to the filing of this brief.

2

ability. Moreover, public funding for private religious

schools inappropriately entangles government with

religion, forcing citizens to invest in religious indoctrination against their beliefs.

As a largely Montanan Conference, we are

particularly interested in this litigation. We strongly

believe that our state’s educational system is best

served by preserving resources for public schools and

leaving religious education to churches and other

religious organizations that are funded by voluntary

investments from their followers. This Court should

uphold the Montana Supreme Court’s ruling to

maintain the stability of Montana’s public school

system and limit government involvement with

religious education.

These motivations are not

“hostil[e] toward religion” as Petitioners claim. We,

the members of the Conference, devote our lives to

promoting religion.

We write to highlight for the

Court how Petitioners’ focus on the purported “antiCatholic” motivation behind the initial enactment of

the Montana constitu-tional provision is not relevant

based on this Court’s previous consideration of

legislative motivation, and the historical backdrop of

the 1972 re-enactment of Montana’s constitution.

SUMMARY OF ARGUMENT

This Court should not consider Petitioner’s straw

man argument that the motivation underlying the

enactment of Article X, Section 6’s 1889 predecessor

matters to the outcome of this case. The Court has

carefully cabined uses of pronounced legislative

motivation in cases involving the Religion Clauses for

good reason—to avoid invalidating lawfully enacted

legislation that is constitutionally appropriate on its

face based on often incorrect or inapplicable assert-

3

ions of malicious intent. Here, Petitioners allege that

Section 6 was born of anti-Catholic animus to advance the interest of Protestants. Yet they use it to

assert a broader “hostil[e] toward religion”—and

apparently

anti-Protestant—animus

as

the

Petitioners seek public funds to attend “nondenominational” schools. Petitioners’ assertion of

anti-religious bias and their attempted conflation of it

with anti-Catholic bias is both inapplicable to the law

and facts here and historically inaccurate. The Court

should disregard this line of argument, which

dominates Petitioners’ opening brief.

ARGUMENT

I.

PETITIONERS ASK THIS COURT TO

DEVIATE FROM PRECEDENT TO

INVALIDATE MONTANA LAW BASED ON

NONEXISTENT MOTIVATION

A. Broad legislative motivation

considered in facial challenges

is

only

For much of its history, this Court has rejected

efforts to “search for motive in testing constitutionality.” Daniel v. Family Sec. Life Ins. Co., 336

U.S. 220, 224 (1949) (citations omitted). As early as

1810, this Court disregarded a challenger’s argument

that legislators were improperly motivated by impure

financial considerations when passing legislation.

Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 131 (1810).

The Court continued to abstain from inquiries into

legislative motive throughout the early part of the

Twentieth Century. See, e.g., Arizona v. California,

283 U.S. 423, 455 n.7 (1931). Not until the 1960s—in

cases such as Epperson v. Arkansas—did this Court

delve into legislative motive. 393 U.S. 97, 109 (1968)

(“[T]here is no doubt that the motivation for the law

4

was . . . to suppress the teaching of a theory which, . .

. ‘denied’ the divine creation of man.”); see also John

Hart Ely, Legislative and Administrative Motivation

in Constitutional Law, 79 Yale L.J. 1205 (1970)

(tracing the Court’s changing use of motivation).

The Court now considers motivation, to various

extents, in First Amendment, Due Process, and Equal

Protection cases, among others. Brandon L. Garrett,

Unconstitutionally Illegitimate Discrimination, 104

Va. L. Rev. 1471, 1486-1503 (2018). While this Court

evolved its use of legislative or administrative purpose, it limits its inquiries into broad motivation to

facial challenges. Caleb Nelson, Judicial Review of

Legislative Purpose, 83 N.Y.U. L. Rev. 1784, 1853

(2008).

In United States v. Windsor, this Court engaged in

a comprehensive consideration of the legislative

purpose underlying § 3 of the Defense of Marriage Act.

570 U.S. 744, 775 (2013). In the course of invalidating

the Act, the Court considered the Act’s deviation from

normal principles of federalism, as well as the law’s

stated purpose, “to promote an interest in protecting

the traditional moral teachings reflected in heterosexual-only marriage laws.” Id. at 771 (citation and

internal quotation marks omitted). It ultimately

decided that the Act’s purpose was to ensure that any

same-sex marriages recognized at the state level

would be treated as “second-class marriages for the

purpose of federal law.” Id. This inappropriate

purpose proved the improperly discriminatory effect,

so the Court invalidated the statute on its face.

Similarly, this Court has considered legislative

motivation in Free Exercise challenges. In Church of

Lukumi Babalu Aye, Inc. v. City of Hialeah, this Court

5

facially invalidated a group of ordinances, that

targeted a particular religious group—the local

Santeria church. 508 U.S. 520, 524 (1993). Lawmakers there, reacting to anti-Santeria sentiments in

the community, imposed criminal penalties for animal

sacrifice, an important tenant of the Santeria faith.

Id. at 526. The Court stated, “[t]he record in this case

compels the conclusion” that lawmakers sought to

suppress a “central element of the Santeria worship

service.” Id. at 534. This improper legislative purpose

proved the invidious discriminatory effect and

mandated invalidation of the statute on its face. Id.

at 533.

This Court also cited a broad, and invalid,

legislative motivation when it found Louisiana’s

Creationism Act facially invalid.

Edwards v.

Aguillard, 482 U.S. 578, 596-97 (1987). There,

Louisiana’s attempt to “restructure the science curriculum to conform with a particular religious viewpoint”

violated the Establishment Clause. Id. at 593. Other

laws that this Court invalidated based on

impermissible purpose resulted from facial challenges

by the targets of the discriminatory legislative intent.

See Romer v. Evans, 517 U.S. 620, 623, 631 (1996)

(invalidating state constitutional amendment which

imposed a “special disability” on homosexual people);

U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 532-33

(1973) (invaliding the “unrelated person” provision of

the Food Stamp Act).

In contrast, this Court has avoided legislative

motive considerations during as-applied challenges.

In United States v. O’Brien, for instance, this Court

rejected O’Brien’s legislative motive argument in part

because the statute was constitutional on its face. 391

U.S. 367, 383 (1968) (“[T]his Court will not strike

6

down an otherwise constitutional statute on the basis

of an alleged illicit legislative motive.”); see also

Daniel, 336 U.S. at 224 (declining to consider

legislative purpose in an as-applied challenge). There

are good reasons to avoid delving into legislative

intent in as-applied challenges. In addition to the

conceptual incongruence, an improperly discriminatory law should be wholly invalid. As-applied

challenges based on purportedly improper legislative

motive invite cases like this: where plaintiffs assert a

discriminatory intent against a group to which they

do not belong in a case where they suffer no ill effects

of that purported discriminatory intent.

B. Legislative or administrative motivation

must be directed at a challenger’s religious

beliefs in as-applied, religion cases, and it

was not here.

Petitioners contend that they were denied the

opportunity to send their children to non-denominational, Protestant schools, and were thus victims of

anti-Catholic animus from the Nineteenth Century.

Yet they do not purport to be Catholic, nor do they

intend to use the funds at issue here to attend

Catholic schools. When this Court has considered

motivation in Religion Clauses cases, it has only

invalidated laws directly targeted at the challenger’s

religious beliefs. That makes sense in light of the fact

that motivation is used to prove discriminatory effect,

and if the motivation does not match the purported

effect, it is not good evidence. For instance, last year,

this Court invalidated an action by the Colorado Civil

Rights Commission. Masterpiece Cakeshop, Ltd. v.

Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1724

(2018). The Commission, in evaluating petitioner’s

religious objections, denigrated the petitioner’s faith

7

specifically. Id. at 1729-30. One Commissioner la-

beled the petitioner’s sincerely held religious objection

a “despicable piece[] of rhetoric.” Id. at 1729. The

Commission’s animus was only legally relevant to the

petitioner’s challenge because it targeted the

petitioner’s exact beliefs.

Generally, this Court has evaluated alleged Free

Exercise and Establishment Clause violations, asapplied. See Trinity Lutheran Church of Columbia,

Inc. v. Comer, 137 S. Ct. 2012, 2025 (2017) (holding

that Trinity Lutheran’s exclusion from a generally

applicable public benefit violated the Constitution);

Emp’t Div. v. Smith, 494 U.S. 872, 890 (1990) (denying

inquiry into motivation for a generally applicable

law); United States v. Lee, 455 U.S. 252, 260-61 (1982)

(upholding a social security tax without examining

underlying legislative motivation); Thomas v. Review

Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 709, 720

(1981) (finding the law denying petitioner’s

unemployment benefits uncon-stitutional as-applied

without considering the underlying motivation).

The Court is correct to restrict the application of

animus to litigants who actually identify with the

purportedly afflicted group. If the purported animus

is inconsistent with the application in the particular

case, it is irrelevant. This case provides a perfect example. Petitioners enroll their children in Stillwater

Christian School. Pet’rs Br. 6. Stillwater is a “nondenominational” Christian school educating children

from kindergarten through high school. Core Values,

Stillwater Christian School.2 Having maintained its

2

Available

domain/232.

at:

https://www.stillwaterchristianschool.org/

8

“non-denominational” status since its founding in

1980, Stillwater does not now, has not ever, and does

not purport to intend in the future, to affiliate itself

with the Catholic Church. History and Expansion,

Stillwater Christian School.3

In their brief, Petitioners describe the history

behind Section 6 as favorable to such nondenominational educational institutions. The bias

was “anti-Catholic,” and non-sectarian was code for

the non-denominational Protestant education that

existed in public schools at the time. Pet’rs. Br. 33

(“Protestantism [was] widely taught in the common

schools.”). Since then, public schools no longer legally

provide non-denominational Protestant education,

and schools like Stillwater exist to spread the Gospel

at an educational institution through a nondenominational viewpoint. In an attempt to exploit

the inconsistency, Petitioners admonish this Court to

“not allow a vestige of Nineteenth Century antiCatholicism to be twisted into an engine of animus

against all religion.” Pet’rs. Br. 29.

But, according to Petitioners’ story, Section 6 was

not just a “vestige of Nineteenth Century antiCatholicism”—it was a vestige of a Nineteenth

Century interest in using public funds to advance

Protestantism at the expense of Catholics. Pet’rs. Br.

at 33. In other words, the Montana government was

using taxpayer dollars of non-believers to advance

Protestant religious education. Petitioners suggest

that this Court apply alleged animus against private

Catholic schooling and alleged bias in favor of non3

Available

domain/15.

at:

https://www.stillwaterchristianschool.org/

9

denominational religious education to hold that it is

unconstitutional, as-applied, to refuse to fund nondenominational religious education. Pet’rs Br. 13-14.

That holding would represent a substantial departure

from this Court’s considerations of legislative and

administrative motivation.

The Petitioners call it “hostility toward religion” to

object to government doing the same thing now that it

did in the Nineteenth Century—using public funds to

advance “non-denominational” Christian education.

To the contrary, amicus does not wish public funds to

go to a school that advances atheism, agnosticism, or

any other pro- or anti-religious view. Amicus simply

wants the government to stay out of religious

education. Instead, amicus desires taxpayer dollars

to flow to the public schools, which do not advance any

viewpoint on religion. Petitioners’ attempt to use purported pro-Protestant, anti-Catholic bigotry from the

Nineteenth Century to obtain funding for “nondenominational” Protestant schools and to paint

current objectors as “hostile toward religion” is plainly

false, insulting, and legally irrelevant under this

Court’s precedents.

II.

ARTICLE X, SECTION 6 OF THE 1972

MONTANA CONSTITUTION DOES NOT

EMBODY ANTI-CATHOLIC ANIMUS

A. The 1889 Montana predecessor amendment was not enacted with improper

purpose

Montana legislators did not choose to enact Article

XI, Section 8 in the 1889 constitution of their own

volition, even though it would later form the basis for

Article X, Section 6 of the 1972 constitution. Prior to

Montana’s statehood, public funding of religious

10

schools was prevalent and widely debated in public

discourse, with an appeal to prohibit funding

“sectarian” schools. Douglas F. Johnson, Freedom of

Religion: Locke v. Davey and State Blaine

Amendments 23-24 (2010). Many scholars impute

anti-Catholic sentiments in the failed federal “Blaine

Amendment,” and the “baby Blaine Amendments”

later adopted by many states. Elijah L. Milne, Blaine

Amendments and Polygamy Laws: The Constitutionality of Anti-Polygamy Laws Targeting Religion,

28 W. New Eng. L. Rev. 257, 260-62 (2006). Even so,

this “anti-Catholic bias” was often not the only

impetus for these amendments as “there were

numerous legitimate motives for adoption of these

state constitutional amendments including responding to growing religious turmoil over religious

practices in schools.” Johnson, supra, at 18.

Numerous changes in religious culture in the

Nineteenth Century—such as the Great Awakening

and the rise of Methodist and Baptist denominations—altered Americans’ views on not only the

role of religion in public schools, but also the

separation of church and state. Id. at 22. One such

example is the Cincinnati “Bible Wars,” a dispute

between Catholics and Protestants over teaching the

King James Bible in public schools. Id. at 18, 23-24.

The Ohio Supreme Court resolved the conflict by

affirming the school board’s decision to remove

religious instruction, stating that “all history shows

us that the more widely and completely they are

separated, the better it is for both” religion and

government. Bd. of Educ. of Cincinnati v. Minor, 23

Ohio St. 211, 248 (1872); Johnson, supra at 23-24. The

court emphasized that government cannot express

religious opinions as, if it did, it would lead to

11

controversy as to whose religious beliefs the government would accept. Minor, 23 Ohio St. at 249. The

realization that “Protestant denominations were also

Christian sects[,] and therefore th[e] constitutional

provisions barring the flow of state funds into

‘sectarian’ institutions would affect Protestant

practices in public schools[,] and not just Catholic

practices,” led to many appreciating a stricter separation between church and state. Johnson, supra, at

26. Prohibitions on publicly funded religious schools

were one such way to accomplish this goal. See id.

Amid these controversies, the federal government

required some incoming states, such as Montana, to

include a provision in their constitutions that

eliminated public funding of sectarian schools. Mark

Edward DeForrest, An Overview and Evaluation of

State Blaine Amendments: Original, Scope, and First

Amendment Concerns, 26 Harv. J.L. & Pub. Pol’y 551,

573 (2003). The 1889 Enabling Act required Montana,

Washington, North Dakota, and South Dakota to

adopt a provision requiring that “public schools . . .

shall be . . . free from sectarian control.” The Enabling

Act of 1889, 25 Stat. 676, 677 (1889). The Act further

provided that this was “irrevocable” without congressional consent. Id.

Following an earlier failed attempt at statehood,

Montana was particularly eager to become a state.

Michael P. Dougherty, Montana’s Constitutional

Prohibition on Aid to Sectarian Schools: “Badge of

Bigotry” or National Model for the Separation of

Church and State, 77 Mont. L. Rev. 41, 45-46 (2016).

This desire for statehood resulted in “little debate

surrounding Montana’s 1889 Constitution, including

the adoption of Montana’s so-called Blaine

Amendment.” Id. at 46. With this unique history and

12

motivation, Montana’s 1889 “Blaine Amendment” was

not solely enacted with the anti-Catholic bias

Petitioners allege.

B. Any purported improper purpose was

cleansed with the 1972 re-enactment of the

Montana constitution.

In any event, the motivation behind the 1889

provision is irrelevant because that constitutional

provision is not at issue here. Montana re-enacted its

constitution in 1972 with significant substantive

changes to remedy the 1889 constitution’s inherent

problems. G. Alan Tar, The Montana Constitution: A

National Perspective, 64 Mont. L. Rev. 1, 12-14 (2003).

This re-enactment cleansed any bias from the

provision. Id. What ultimately became Section 6 was

heavily debated during the re-enactment process.

Dougherty, supra, at 48.

The Education and Public Lands Committee first

debated the provision that evolved into Section 6.

1971-72

Montana

Constitutional

Convention

Verbatim Tr., vol. II, at 728-30. In its final report, the

committee recommended re-adopting Article XI,

Section 8 of the 1889 constitution. Id. at 728. The

committee emphasized the traditional separation of

church and state as “a fundamental Principle of

American education.” Id at 729. This argument was

buttressed by the fear that “[a]ny diversion of funds or

effort from the public school system would tend to

weaken that system in favor of schools established for

private or religious purposes.” Id. Moreover, the committee believed it was the prerogative of the state to

enforce a stricter separation of church and state than

that present in the federal constitution. Id. Additionally, there was a fear that Montanans would not vote

13

for the constitution if the provision were removed due

to the deep emotional import of the separation of

church and state. Convention Tr., vol. II at 729

(citing, as evidence, New York’s failure to pass a new

constitution after altering the state’s religion clauses).

Lastly, the committee was concerned that relaxing the

prohibition would increase involvement of religious

institutions in state matters and lead to favoring one

religious group over others. Id.

As indicated in the committee report, anti-Catholic

bias was not a consideration in reasserting a prohibition on public funding of religious institutions.

See id. at 728-29. The delegates wanted to ensure that

they protected the stricter separation between public

monies and religious institutions that Montanans

valued. See id.

The committee also reviewed a minority proposal

to explicitly exclude federal funds from the

prohibition. Id. at 730. While the committee did not

agree that this addition was warranted as the prior

constitution was never interpreted to include federal

funding, id., the convention later adopted the

provision as part of Section 6. 1971-72 Montana

Constitutional Convention Verbatim Tr., vol. VI, at

2031.

The committee’s reasoning and rationales were

reiterated during the floor discussion of Article X,

Section 6.

Delegate Harper emphasized that

“Americans are dedicated to the idea of church and

state separation.” Id. at 2013. Others were troubled

by any siphoning of public monies from public schools

to fund religious and private schools. Id. at 2015.

The main concern for many delegates, however,

was federal funding of religious institutions. Delegate

14

Toole, supporting the additional language allowing

federal funding of private and religious schools, stated

that “[w]e have given great attention to the matter of

pluralism in our society and the necessity to maintain

it. I think these few harmless words could be of

significant benefit and cannot possibly harm anyone

in the state of Montana.” Id. at 2011. Delegate

Driscoll also noted that while this is “an archaic

provision . . . . It doesn’t provide any religious

emphasis . . . . [nor] for any conflict between church

and state.” Id. at 2012. The amendment’s proponent,

Delegate Loendorf, summarized the addition as

“maintain[ing] the status quo.” Id. at 2025. The

amendment passed 53 to 40 in the roll call vote. Id. at

2026.

Some delegates raised concerns about antiCatholic bias present in “Blaine Amendments.” While

still supporting the decision to amend Section 6’s

predecessor, Delegate Harbaugh reiterated the Blaine

Amendments’ troubling history. Id. at 2010. Delegate

Brown apprised the convention of the alleged antiCatholic bias present in the original provision, calling

it “a badge of bigotry.” Id. at 2012. Both Delegates

Brown and Harbaugh later voted to amend Section 6

to include an exemption for federal funds. Id. at 202526. While both delegates were aware of potential

biases in the original amendment, they—as well as

others who voted for the amendment after expressing

such concerns—did not see the new constitution

retaining any anti-Catholic bias. Dougherty, supra,

at 53. There is simply no evidence that anti-Catholic

bias motivated the delegates, and the Petitioners do

not purport to have provided any.

Even with the debate concerning the original

intent of the prohibition in the 1889 constitution, most

15

delegates were concerned with the separation of

church and state and whether federal funding of

sectarian schools could be exempted from the Section.

See Convention Tr., vol. VI, supra, at 2008-31. In the

end, the provision, amended to include the federal

funding exemption, passed by voice vote. Id. at 2031.

Montanans still support this strict separation of

church and state because “[t]he most effective way to

establish any institution is to finance it; and this truth

is reflected in the appeals by church groups for public

funds to finance their religious schools.” State, ex rel.

Chambers v. Sch. Dist., 472 P.2d 1013, 1021 (Mont.

1970) (citation and internal quotations omitted).

Many see that using public funds for a religious school

makes it “[im]possible to determine where the secular

purpose ended and the sectarian began.” Id. The

serious debate of the prohibition on funding sectarian

schools during the constitutional convention demonstrates that the ultimate concern of the delegates was

the separation of church and state, not any animus or

anti-Catholic bias. See Convention Tr., vol. VI, supra,

at 2008-31; see also Dougherty, supra, at 54–55.

Through this re-enactment process, Montana

cleansed the amendment of any potential bias that

may have lingered in the provision.

16

CONCLUSION

For the foregoing reasons, the Court should

disregard Petitioners’ argument that the Montana

Supreme Court’s decision is grounded in anti-Catholic

bias and affirm for the reasons stated in the Montana

Supreme Court’s decision.

Respectfully submitted,

PATRICIA E. ROBERTS

WILLIAM & MARY LAW

SCHOOL APPELLATE

AND SUPREME COURT

CLINIC

P.O. Box 8795

Williamsburg, VA 23187

Telephone: 202-759-6925

tjbreckenridge@wm.edu

TILLMAN J. BRECKENRIDGE*

PIERCE BAINBRIDGE

BECK PRICE &

HECHT LLP

601 Pennsylvania Ave., NW

Suite 700S

Washington, DC 20004

Telephone: 202-843-8342

tjb@piercebainbridge.com

*Counsel of Record

Counsel for Amicus Curiae