Could U.S. Supreme Court impact Havre's St. Jude's school?

While the U.S. Supreme Court continues to deliberate on a Montana lawsuit that could change the environment of church and state in America, the head of a local parochial school said he does not know what it will mean to his and other religious schools.

"The initial impact, really nothing at all," said Mike Haugen, principal of St. Jude Thaddeus School, Havre's private Catholic school. "It's kind of a wait-and-see with what the Supreme Court decides, and then it's really in political hands after that and what the people of Montana want."

Espinoza v. Montana Department of Revenue was argued in a U.S. Supreme Court hearing Jan. 22.

Montana parents Kendra Espinoza, Jeri Anderson and Jaime Schaefer, whose children attend Stillwater Christian School in Kalispell, sued the state after the Department of Revenue ruled that a law passed by the 2015 Legislature giving tax credits of up to $150 to people who donate to organizations providing scholarships or aid to private schools violated the Montana Constitution.

The Constitution prohibits the state from giving any direct or indirect aid to religious institutions or religiously affiliated schools.

Article X, Section 6, reads:

"Aid prohibited to sectarian schools. (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.

"(2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education."

A district judge ruled in favor of the mothers, but the state appealed and the Montana Supreme Court struck down the entire provision, saying Montana could not give tax credits for donations to any private schools.

The lawsuit says the rule - and the provision in the Montana Constitution - violates their federal constitutional right to freedom of religion and equal protection under the law.

Montana Gov. Steve Bullock's chief legal counsel, Raph Graybill, who argued for the state in the Supreme Court hearing, spoke about the case Monday at a meet and greet event in Chinook. 

Graybill was in Chinook campaigning in his race for Montana Attorney General, held by Republican Attorney General Tim Fox, who is campaigning for state governor in this upcoming election. Fox cannot run for re-election to his seat due to term limits.

Graybill said Fox's refusal to defend the state Constitution in the lawsuit is an example of what, in Graybill's opinion, is Fox failing to defend the state in issues crucial to the interests of the citizens of the state.

His not arguing the case is why it fell to the governor's office and led to Graybill arguing before the U.S. Supreme Court, Graybill said.

The Attorney General's Office had not replied to a request for comment about the Espinoza case as of print deadline this morning.

Graybill faces Rep. Kim Dudick, D-Missoula, in the attorney general primary, while former Speaker of the House Austin Knudsen, R-Culbertson, has filed on the Republican side of the ticket. Fox's chief deputy attorney, Republican John Bennion, has said he will run in the race but was not listed as a candidate on the Montana Secretary of State website this morning.

Fox and Republican state Sen. Al Olszewski of Kalispell have filed in the governor's race, while U.S. Rep. Greg Gianforte, R-Mont., has announced his candidacy but had not filed with the secretary of state as of this morning.

Lt. Governor Mike Cooney and Missoula charitable businesswoman Whitney Williams have declared as Democratic gubernatorial candidates but were not listed on the Secretary of State website this morning.

Graybill said he argued that the case is a direct attack on the state's constitution. He added that when the state constitution was written in 1972 the people who wrote it believed the most important thing the state could protect was the public education system.

"They designed all of these protections in our constitutions to make sure that public education couldn't be diluted or tinkered with by the legislature," he said.

Two of the state's congressional delegates, Sen. Steve Daines, R-Mont., and Rep. Greg Gianforte, R-Mont., signed an amicus brief on behalf the plaintiffs.

The brief mentioned the Blaine Amendments in the state constitution, which were named for Republican James G. Blaine, who was the speaker of the House from 1869 to 1875. In 1875, Blaine introduced an amendment to the federal constitution which would have enacted a provision which prohibited aid from being used by private religious organizations. The amendment failed to pass on a federal level but a number of states adopted similar provisions banning public aid to religious schools.

According to Middle Tennessee State University's "The First Amendment Encyclopedia," Blaine attempted to amend the first amendment to the U.S. Constitution to explicitly prevent any funds or public lands associated with public education from being under the control of or divided between religious sects or denominations. The amendment easily passed the U.S. House but failed in the Senate, the encyclopedia reports.

He proposed the amendment in the 1870s, a time when Catholic schools were seeking public funding to combat "overt Protestantism in public schools," the encyclopedia reports.

"Creators and supporters of Blaine amendments were inconsistent in their espousal of strict separation of church and state," it continues. "While their opposition to government spending on parochial schools had the effect of making their state constitutions more explicit than the U.S. Constitution in prohibiting state support of religion establishments, they saw no conflict with simultaneously supporting Protestant practices in public schools as well as state legislatures and other public settings."

But the impetus to prevent Catholic schools from receiving public funds and state-level "Blaine amendments" also essentially led to the push to remove Protestantism and all religious teachings - such as readings from the King James Bible or morning prayers, or teaching creationism rather than evolution - from all public schools.

By the time the 1972 Montana Constitutional Convention was held, Protestantism also generally was absent from Montana public schools.

Most Montana private schools are religious, including both Catholic and Protestant Christian schools.

Daines and Gianforte's brief said the Monana Constitutional provision was a result of strong anti-Catholic sentiment, directed toward the large number of Catholic Irish immigrants at the time it was initially included in 1889.

"Montana's mini-Blaine provision improved with age," the brief says. "Today, Catholic schools are just one of many types of educational institutions in Montana that are controlled in any way by a 'church, sect, or denomination.' But it is no defense to the Free Exercise Clause to say that Montana has lessened its anti-Catholic animus by treating other religiously affiliated schools just as poorly when it comes to eligibility for generally available public benefits."

The brief added that delegates to the 1972 constitutional convention debated in Montana, which discussed and reworked the state's Constitution, considered scrapping Montana's "mini-Blaine amendment." Some criticizing the provision as a "relic of anti-Catholic 'hysteria' and the 'remnants of a long-past era of prejudice.'"

The restriction was included in the state constitution.

At the hearing Wednesday, Daines addressed the Supreme Court. Daine's office provided his statements to The Havre Daily News.

"This is about the fact Montana parents and children are being discriminated against simply because of the school that they choose," Daines argued. "This is about equal protection under the law, under the constitution. This is about protecting our religious liberty. I'm looking forward to hearing these arguments and seeing Mrs. Espinoza."

Graybill said Monday in Chinook that going to a private, religious school is a choice people are free to make, but taxpayers' dollars should not be used for private schools. He said that by allowing taxpayer's dollars to be used for private schools it is not only taking funding away from the public school system but it allows the state to influence religious organizations.

He said Gianforte and Daines did not stand with Montanans or Montana values and were untruthful in their brief.

"This brief, as far as I'm concerned, that Gianforte and Daines wrote, was a slander job, it was a shame and it was a lie," Graybill said.

He added that while at the Supreme Court he was sitting with two of the surviving delegates from the 1972 constitutional convention, Gene Harbaugh and Mae Nan Ellingson. It was a shame the congressional delegates openly attacked Harbaugh and Ellingson, their work and the state's Constitution, Graybill said.

Graybill said that Harbaugh and Ellingson's brief to the Supreme Court said that during the 1972 convention, a Catholic priest spoke in support of keeping the Blaine amendment-type provision in the state's constitution. Graybill said the brief said that the priest told the delegates it was good to have a separation between church and state and supported religious organizations staying independent.

"It was interesting sitting there with these two delegates in this case because your senator, Steve Daines, and your congressman, Greg Gianforte, weighed in on this case," Graybill said. "But they didn't weigh in on behalf of the state or on public schools. They said even though we serve the people of Montana we should take this part of the Montana Constitution away, we should send more money to private religious schools. And they went even farther than that, they said the people that wrote your constitution were bigots, they said they didn't care about public schools, but really they didn't like Catholics and they were anti-Catholic bigots, 'this is all about starving Catholic schools.'

"That's really a shame they said that," Graybill added. 

U.S. Sen. Jon Tester, who was not at the Supreme Court hearing, said he is opposed to the Supreme Court designating what the state can and cannot do with its tax dollars.

"Our state's constitution is very clear on where Montanans' tax dollars can and can't be spent, and I hope folks in Washington will not interfere with our state law or our Montana values," he said in a statement sent to The Havre Daily News.

In the 1970s a number of states across the country had the ability to rewrite their constitutions, Graybill said, adding that Montana was on the leading edge of the process. He said that it was a chance for the state to start from scratch and say what, as a government and a state, its goals were and how to memorialize those goals and values in documents that would last through time.

Graybill said the constitutional convention in Montana was uniquely special. The process being entirely citizen-driven, the one rule of the convention being that no sitting politician could be involved. He added that the document that is being attacked for "anti-Catholic" bigotry is the same document which contains an equal rights provision similar the Equal Rights Amendment proposed for the U.S. Constituion.

The provision in question in Espinoza v. Montana Department of Revenue is not a discussion of equal rights but a protection of rights and keeping religious organizations and the state separate, Graybill added.

"We are so lucky in Montana, to have its protections," he said.

But Haugen said, while a ruling in favor of Espinoza, Anderson and Schaefer could help private schools obtain more funding, everyone is waiting to see what happens.

He said he contacted some Catholic schools around the state and said the schools aren't saying much because the decision is not even out yet.

"What it opens up for us and the school is just a conversation," Haugen said. "It just provides an opportunity for that conversation as far as to the Catholic schools or religious schools, as far as tax credit or about it program or anything like that, and it'll be a discussion point."

He said most of the information he had came from the head of the Montana Catholic Conference, Matt Brower.

He said if the end result is tax credits, it could help St. Jude's, adding that the school is open to everyone and it gives a substantial amount of financial aid to families.

He said the school receives money for memorials and general donations, with people donating to St. Jude's foundation, and Espinoza v. Montana Department of Revenue could help people who are making donations to the school's different scholarship funds or any building projects.

"Obviously, it would help our families ... and it could possibly help if people could get a (break on their) tax return for their tuition, and if that were ever to come about, I think the real question is, because we get financial aid, do you really want our faith-based education?" he said. "If something came across that it could be a tax deduction for donations to our school, so if something came in that form, obviously, it would help people."