Montana’s decision to exclude religious schools from a state scholarship program funded by tax credits violates the First Amendment to the U.S. Constitution, a divided Supreme Court ruled June 30, handing school choice advocates a significant victory.
It’s also “an important victory for religious liberty and religious equality in the United States,” U.S. Attorney General William Barr said in a statement after the opinion was released to the public.
“As the Court explained, religious people are ‘members of the community too,’ and their exclusion from public programs because of their religion is ‘odious to our Constitution’ and ‘cannot stand.’ We were pleased to see the Court agree with the Trump Administration that such blatant discrimination against religion has no place in our constitutional system,” Barr said.
On the campaign trail in September 2016, President Donald Trump expressed his support for the school-choice movement. There is “no failed policy more in need of urgent change than our government-run education monopoly,” he said.
Ethan Blevins, an attorney with the Sacramento, California-based Pacific Legal Foundation (PLF), a public interest law firm that filed a friend-of-the-court brief in the case, praised the court decision.
Montana “cannot prohibit students from receiving privately funded scholarship funds just because they choose to attend a religious school. Today’s decision marks a major victory for school choice and equality under the law.”
The petitioners in the case are three low-income mothers who needed the scholarship funds to keep their children in Stillwater Christian School, a nondenominational school in Kalispell, Montana. The program provided individuals and corporations a tax credit for giving as much as $150 annually to a nonprofit student scholarship organization helping poor students attend private schools.
The parents sued after the state’s Department of Revenue ruled that those scholarship funds couldn’t be used for religious schools. A trial judge enjoined the rule, and then the Montana Supreme Court struck down the program itself by a 5–2 vote on Dec. 12, 2018. That court declared that, unmodified by the Department of Revenue rule, the program ran afoul of the state’s constitution, which contains a “no aid” provision, preventing tax dollars from flowing to religious schools.
The Supreme Court’s ruling on this “no aid” provision appears to open the door to legal challenges in other states that contain similar language in their state constitutions.
Except for Justices Brett Kavanaugh and Elena Kagan, every member of the U.S. Supreme Court filed an opinion in the case, suggesting passions may have run high during the justices’ deliberative process.
Chief Justice John Roberts wrote the majority opinion, which four conservative justices joined. In addition, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch each filed a separate concurring opinion. Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor each filed a separate dissenting opinion.
“A State need not subsidize private education,” Roberts writes for the court.
“But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
In this case, “the parties do not dispute that the scholarship program is permissible under the Establishment Clause [of the federal Constitution]. Nor could they. We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”
The no-aid provision penalizes families by cutting them off “from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.”
During oral arguments five months ago, Alito and Kavanaugh spoke of the anti-religious, and particularly anti-Roman Catholic, bias of the so-called Blaine Amendment, a failed amendment to the U.S. Constitution that would have prohibited direct government aid to educational institutions with religious affiliations. Despite the failure at the federal level, three-quarters of the 50 states later adopted similar provisions in their state constitutions.
Laws banning funding of religious schools are “certainly rooted in ... grotesque religious bigotry against Catholics,” Kavanaugh said.
Roberts echoed that sentiment in the majority opinion, tying the “no aid” provision in the Montana constitution to the era of the Blaine Amendment.
“The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’; many of its state counterparts have a similarly ‘shameful pedigree,’” Roberts wrote, citing a previous Supreme Court ruling and a law review article.
