Opinion analysis: Court rules that religious schools cannot be excluded from state funding for private schools

In 2015, the Montana legislature created a scholarship program that provided a dollar-for-dollar tax credit for donations to private scholarship organizations. Those organizations used the money to fund scholarships for children to attend private schools – which, in Montana, are primarily religious schools. In 2018, the Montana Supreme Court struck down the tax-credit program, holding that it violated the state constitution’s ban on aid for churches and religious schools.

Today the U.S. Supreme Court threw out the Montana Supreme Court’s decision. By a vote of 5-4, the justices ruled in Espinoza v. Montana Department of Revenue that the state court’s interpretation of the Montana constitution violated the U.S. Constitution, which protects the free exercise of religion. States are not required to subsidize private education, Chief Justice John Roberts explained in his opinion for the majority. But if they opt to do so, they cannot exclude religious schools from receiving those funds simply because they are religious.

The ruling came in a lawsuit filed by three low-income mothers who wanted to be able to use the scholarships to keep their children in Stillwater Christian School, a religious school in Kalispell, Montana. One of those mothers, Kendra Espinoza, is a single parent who sent her daughters to Stillwater after one struggled in public school and the other was bullied. The school appealed to her not only because it is private, but also because it “teaches the same Christian values that” Espinoza tries to teach at home.

The Constitution’s free exercise clause protects people who are religious from being treated unequally, as well as from laws that discriminate based on religion, Roberts began. Three years ago, in Trinity Lutheran Church v. Comer, Roberts explained, the court “distilled” its decisions interpreting the free exercise clause into the “unremarkable” conclusion that, when the government denies an otherwise available benefit solely because of the would-be recipient’s religious nature, the denial is subject to the most stringent standard of constitutional review, known as strict scrutiny.

In this case, Roberts continued, the “no-aid” provision in Montana’s constitution clearly prohibits religious schools (and parents who want to send their children to those schools) from receiving funds through the tax credit program solely because the schools are religious. Therefore, it too is subject to the “strictest scrutiny,” and it can only survive if it is “narrowly tailored” to promote “interests of the highest order.” Roberts rejected each of the state’s arguments about the interests that the no-aid provision purportedly promoted. The provision cannot be justified as an extra protection against the separation of church and state, Roberts observed, because the U.S. Constitution’s establishment clause – which prohibits the government from establishing an official religion or favoring one religion over another – already serves that purpose. And although the Montana Department of Revenue asserted that the no-aid provision actually promotes religious freedom – both by ensuring that taxes don’t go to religious groups and by keeping the government out of the religious groups’ business – that is not enough, Roberts wrote, when the provision infringes on the schools’ and parents’ rights to exercise their religion. Finally, Roberts dismissed the state’s suggestion that the no-aid provision promotes the state’s interest in public education as unconvincing, noting that the provision only bars aid to religious schools, not to all private schools.

In an opinion joined by Justice Neil Gorsuch, Justice Clarence Thomas reiterated his belief that the establishment clause is far more limited than the court has interpreted it to be: It bars the federal government from establishing an official religion, but goes no further than that. And in Thomas’ view, the court’s “wayward” and “overly expansive” approach to the establishment clause has also resulted in a “correspondingly cramped interpretation” of the free exercise clause, as state and local governments argue that violations of free exercise rights are required to comply with the establishment clause. The Supreme Court, Thomas concluded, “has an unfortunate tendency to prefer certain constitutional rights over others,” and the free exercise clause “rests on the lowest rung of the Court’s ladder of rights.” “Returning the Establishment Clause to its proper scope will not completely rectify the Court’s disparate treatment of constitutional rights, but it will go a long way toward allowing free exercise of religion to flourish as the Framers intended.”

Justice Samuel Alito also filed a concurring opinion in which he focused on the “original motivation” for the no-aid provision. A number of “friend of the court” briefs supporting the state, Alito stressed, “point out that Montana’s provision was modeled on the failed Blaine Amendment to the” U.S. Constitution. The Blaine Amendment, proposed in 1875 and “prompted by virulent prejudice against immigrants, particularly Catholic immigrants,” would have prohibited aid to Catholic and other religious schools. And if the original motivation for state laws allowing nonunanimous jury verdicts in criminal cases mattered earlier this term in a challenge to the constitutionality of those laws, Alito (who dissented in that case) argued, “it certainly matters here.”

Justice Ruth Bader Ginsburg dissented, in an opinion joined by Justice Elena Kagan. She stressed that the Montana Supreme Court’s decision invalidated the entire tax credit program, so that no one is receiving any money for private schools – whether they are secular or religious. Therefore, Ginsburg contended, no one is being treated differently based on religion, and there is no constitutional problem.

Justice Stephen Breyer filed a dissenting opinion that Kagan joined in part. He warned that the “majority’s approach and conclusion in this case” “risk the kind of entanglement and conflict” that the establishment and free exercise clauses “are intended to prevent.” “If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom,” Breyer wrote. Breyer criticized what he characterized as the majority’s bright-line rule that “all distinctions on the basis of religion” “are similarly and presumptively unconstitutional,” as well as the questions that Roberts left open about the limits of today’s ruling – for example, will the state be required to fund religious public schools?

Justice Sonia Sotomayor filed her own separate dissent in which she described the majority’s decision as “perverse.” “Without any need or power to do so,” she wrote, the Supreme Court “appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.” Although the Supreme Court has acknowledged that the government cannot bar the free exercise of religion, she continued, that “has never meant that a majority could use the machinery of the State to practice its beliefs.”

Today’s decision was a landmark win for school-choice advocates. In a statement released by the Institute for Justice, which represented the parents in the case, lawyer Erica Smith described today’s ruling as a “major victory” for “parents who want to choose the best school for their children, including religious schools.” The decision, she continued, “will allow states across the country to enact educational choice programs that give parents maximum educational options.”

Opponents of the scholarship program, by contrast, warned that the ruling could have a negative impact on public schools. A statement released by Tamerlin Godley of the law firm Munger, Tolles & Olson on behalf of the group Public Funds Public Schools cautioned that “[d]iverting limited public funds to support private schools does not improve educational opportunities for students. Our focus should be to strengthen our country’s underfunded public schools.”

This post was originally published at Howe on the Court.