Supreme Court Dismisses Montana’s State Ban on Public Funding for Religious Schools

Image: Casey Kreider / The Daily Inter Lake via AP. Jeri Anderson and Kendra Espinoza are parents of students at Stillwater Christian School in Montana.

Update (June 30): Montana violated the First Amendment when it barred religious schools from a state scholarship program, the US Supreme Court ruled Tuesday, in a case school choice advocates hope will open the door for more education voucher programs.

The state’s “no aid provision,” categorically banning any type of aid to religious schools, represents an overly sweeping effort at church-state separation that results in religious discrimination against religious schools and adherents, wrote Chief Justice John Roberts in the 5–4 Espinoza vs. Montana Department of Revenue decision.

“The prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them,” the opinion read. “They are ‘member[s] of the community too,’ and their exclusion from the scholarship program here is ‘odious to our Constitution’ and ‘cannot stand.’”

Roberts said that states do not need to subsidize private education, but if they do, they cannot disqualify some private schools just for being religious.

“For many families, Espinoza not only provides the potential for expanded opportunities for them to educate their children, including the choice of religious education, but also the right to decide what they believe is the most effective way to do so,” said Jeanne Allen, the founder of the Center for Education Reform.


When a Montana tax credit program for private school scholarships was accused of being discriminatory because religious schools were not eligible, the state eliminated the program outright rather than fight the case.

But now, the state has ended up at the US Supreme Court anyway, with a legal dispute centering around whether the legal basis Montana (and dozens of other states) uses to bar public funding of religious education is constitutional.

The justices will hear arguments Wednesday in Espinoza vs. Montana Department of Revenue, a case over a scholarship program for private K-12 education that makes donors eligible for up to $150 in state tax credits. Advocates on both sides say the outcome could be momentous because it could lead to efforts in other states to funnel taxpayer money to religious schools.

Montana is among 37 states that have provisions in their state constitutions that prohibit religious schools from receiving state aid, also known as Blaine amendments.

Legal advocates and Christian schools opposed to the restrictions say they discriminate against religious families by blocking them from government benefits available to others, or by favoring secular education. They also note that such prohibitions were historically designed to not to keep the government from endorsing religion—since a Protestant ethos was generally part of public education—but to deny support to Catholic (“sectarian”) schools in particular.

Like many religious freedom cases, this one floats the balance between the establishment clause—the government cannot support a particular faith over others—and the free exercise clause—it cannot prohibit citizens from exercising their religious beliefs.

In a brief to the Supreme Court, the Montana Department of Revenue argued, “Different states, with different legislatures and different constitutions, will arrive at different policies,” which “is something to celebrate, not quash.”

Diana Verm, senior counsel with Becket Fund for Religious Liberty, which filed a friend-of-the-court brief in support of the plaintiffs, challenged whether Montana had gone too far with its “no aid” provision.

“It’s true you do want space for states to address things in their own way, but the free exercise clause is always the limit in this case,” she said in an interview with CT. “Does the free exercise clause allow a state to end a program because parents who receive funding from that program would use it at a religious school?”

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Source: Christianity Today