Supreme Court Opens Montana’s Education Tax Credit Program to Religious Schools

Yolanda Curtis
July 1, 2020

Chief Justice John Roberts wrote the majority opinion which four conservative justices joined. "A state discriminating against religion is just as unconstitutional as a state promoting one particular religion".

In finding a free exercise clause violation, Roberts cited the Supreme Court's 2017 decision in Trinity Lutheran Church of Columbia, Missouri v. Comer, which held that a church's free exercise rights were violated when it was denied a state grant to resurface its playground.

DeVos politicized her visit in a press release, attacking Pennsylvania Democratic Governor Tom Wolf for vetoing a bill that would have doubled the $210 million in taxpayer funds used to subsidize a program granting tax credits to help funnel money into private and charter schools, and effectively out of the public schools system statewide. The 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.

In practice, most of the money went to Christian schools. This decision makes clear that no state may discriminate against families or schools exclusively on the basis of their religious character.


The Trump administration supported the plaintiffs before the High Court. "The high court makes clear that the Free Exercise Clause demands the equal treatment of religious citizens and institutions in government programs". Contributions to SSOs finance scholarships given to families for student tuition at private schools of their choosing. The decision comes as surveys show support for President Donald Trump slipping among religious conservatives and could provide a needed buoy to his supporters as a Court he purported to stack with conservative jurists has delivered victories for liberals on abortion and LGBT rights in recent days.

"The Constitution ensures that religious Americans will not be discriminated against due to their faith". Justice Brett Kavanaugh, whose two daughters attend Catholic schools, made a similar point during arguments in January when he talked about the "grotesque religious bigotry" against Catholics that underlay the amendment.

Justices Ruth Bader Ginsburg and Sonia Sotomayor also wrote dissents in which they said the Montana Supreme Court didn't discriminate against religion when it struck down the entire scholarship program.

In the case, free exercise of religion was pitted against another element of the First Amendment - the separation of church and state that prohibits governmental establishment of an official religion or favoring one religion over another. "This court has overturned decades of precedent in an effort to privilege certain religious beliefs and have them dominate our civic life", said Rachel Laser, Americans United's president.


McDonald, of the Catholic education association, also predicted that the ruling would bring swift changes in ME and Vermont, where parents have been able to get public funds for tuition at secular private schools, but not at faith-based schools.

The US Supreme Court has denied federal funding to billionaire financier George Soros' global anti-AIDS organizations, ruling that in order to access the federal cash, the groups must explicitly oppose prostitution.

Espinoza vs. Montana Department of Revenue - has broader implications, because it focused the high court's attention on so-called Blaine Amendments.


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