Supreme Court Lifts Ban on State Aid for Religious Schooling

The Supreme Court on Tuesday made it easier for religious schools to obtain public funds, upholding a Montana scholarship program that allows state tax credits for private schooling.

The court’s 5-4 ruling, with conservatives in the majority, came in a dispute over a Montana scholarship program for private K-12 education that also makes donors eligible for up to $150 in state tax credits. The scholarships were made available to low income families to use at private schools — either secular or religious.

Chief Justice John Roberts wrote the opinion that said the state ruling violates the religious freedom of parents who want the scholarships to help pay for their children’s private education. “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious,” he wrote.

The Legislature created the tax credit in 2015 for contributions made to certain scholarship programs for private education. The state’s highest court had struck down the tax credit as a violation of the Montana constitution’s ban on state aid to religious schools.

A groups of parents, including Kendra Espinoza, whose name the case bears, with children that had been slated to benefit from the program, but were blocked from attending the schools of their choice by the state Supreme Court ruling, brought their claims to the Supreme Court.

The Agudath Israel of America, which had filed a brief in support of the parents when the case was brought before the state’s high court and followed their claim to the nation’s Supreme Court, welcomed the ruling.

“The Supreme Court has made clear that states may no longer discriminate against religious schools in state aid programs that benefit private schools,” said Rabbi Chaim Dovid Zwiebel, the organization’s Executive Vice President.

The decision builds largely on a 2017 Supreme Court decision, Trinity Lutheran Church, where seven out of nine of the court’s justices ruled that a grant program for playground equipment to schools in Missouri was unconstitutional on the basis of its exclusion of religious schools. The present case, which discussed full scholarships which potentially include religious education, garnered two fewer votes.

The Court’s ruling on Montana’s program could have far reaching implications for other states with laws that expressly bar funding to religious schools.

Known as “Blaine Amendments,” the provisions have long been a thorn in the side of the school choice movement. Roughly three-dozen states have similar no-aid provisions in their constitutions.

Justice Samuel Alito pointed, in a separate opinion, to evidence of anti-Catholic bigotry that he said motivated the original adoption of the Montana provision and others like it in the late 1800s, although Montana’s constitution was redone in 1972 with the provision intact. Justice Brett Kavanaugh made a similar point during arguments in January when he talked about the “grotesque religious bigotry” against Catholics that underlay the amendment.

In the court’s opinion, Justice Roberts also pointed to the historical development of Montana’s law, holding it up as proof of the constitutionality of such funding. He noted that for close to 100 years, states did provide funding to religious schools and that such bans only arose with anti-Catholic sentiments in the 1870’s.

Justice Sonia Sotomayor wrote in dissent that the high-court ruling “is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.”

The ruling was praised by a long list of religious liberty advocates.

“It was high time for the Blaine Amendments to bite the dust,” said Diana Verm, senior counsel at Becket, a non-profit law firm that has long fought state laws banning such funding. “Our Constitution requires equal treatment for religious people and institutions.”

Agudah’s Rabbi Zwiebel sounded a similar note.

“This decision paves the way for other states that have similar ‘no aid’ provisions in their state constitutions to enact programs such as the scholarship tax credit program in Montana that encourages donations to scholarship funds to assist religious school students,” he said.

The Orthodox Union had also filed a brief in support of the parent’s claims. Its Executive Director for Public Policy, Nathan Diament, said that the ruling could pave the way to broader applications of government funding to religious institutions.

“A state discriminating against religion is just as unconstitutional as a state promoting one particular religion. In its ruling today in Espinoza, the Supreme Court has clearly rejected any kind of discrimination based upon the religious ‘status’ of a family, school or student,” he said. “The high court makes clear that the Free Exercise Clause demands the equal treatment of religious citizens and institutions in government programs.”

With Reporting by the Associated Press.