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Should state governments help fund religious schools?

The Supreme Court will hear a case on tax credits for religious schools on Jan. 22.

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The Sam W. Mitchell Building which houses the Montana Department of Revenue is pictured in Helena, Mont., on Friday, Jan. 17, 2020.

Colter Peterson, for the Deseret News

SALT LAKE CITY — In recent years, the Supreme Court has repeatedly said the Constitution prohibits religious discrimination. Does that mean states can’t exclude religious institutions from school funding programs?

Justices will take up that question on Wednesday when they hear oral arguments in Espinoza v. Montana Department of Revenue, a case on whether tax credits can benefit kids attending private religious schools.

In the past, the court has said state officials don’t violate the Constitution’s religion clauses when they prevent government money from funding religious education. But the current group of justices is sympathetic to religious freedom claims and could argue that Montana officials singled out religious students for mistreatment.

The justices’ eventual ruling will likely lead to changes to many types of funding laws, such as rules governing voucher programs, said Frank Ravitch, a law professor at Michigan State University.

“If the court holds that it violates the free exercise clause to exclude religious entities from any sort of funding program ... it has very wide ranging implications,” he said.

Case background

Espinoza v. Montana Department of Revenue centers on a state tax credit program that originated in 2015. It enabled residents to get a tax credit of up to $150 for donations made to support scholarships for students at private schools.

Soon after the program launched, the Montana Department of Revenue announced that religiously affiliated private schools were not eligible to participate due to a state constitutional provision barring government financial support of religious education. In response, a group of moms sued state officials, arguing that the department had misinterpreted the law.

The moms won at the district level, and students at private, religious schools regained access to the scholarship funds. But then the Montana Supreme Court overturned the district court’s ruling and invalidated the entire tax credit program.

“The tax credit program violates (the state’s) stringent prohibition on aid to sectarian schools,” wrote Judge Laurie McKinnon in the Montana Supreme Court’s majority opinion.

The group of moms appealed to the U.S. Supreme Court, which announced in June that it would hear the case. Justices will decide whether Montana leaders violated the Constitution’s equal protection and religion clauses when they ended a “generally available and religiously neutral” program simply because it benefitted religious schools.

“The question is whether state governments must include religious entities in programs that could be available to nonreligious entities,” Ravitch said.


The Sam W. Mitchell Building which houses the Montana Department of Revenue is pictured in Helena, Mont., on Friday, Jan. 17, 2020.

Colter Peterson, for the Deseret News

Considering the purpose

The Supreme Court has pondered this question many times before, but rulings vary from case to case. Justices typically consider whether a funding program has a secular purpose, and, if it does, say religious institutions should be allowed to take part, said Rick Garnett, a professor of law and political science at the University of Notre Dame.

For example, in 2017, the Supreme Court ruled that it was wrong for Missouri to exclude religiously affiliated schools from a playground safety program. Faith-based institutions should compete for the grant on the same terms as other schools, since playground activities aren’t religious in nature, the justices said.

“The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution,” wrote Chief Justice John Roberts in the majority opinion.

However, in a similar case from 2004, the Supreme Court ruled that the state of Washington could exclude students seeking ministry degrees from a public scholarship program, affirming the state’s right to prevent taxpayer money from promoting religion.

“If you have a program that doesn’t promote religion and you exclude a religious entity, that’s discrimination,” Ravitch said. But if the program does promote religion, then it’s not.

Ravitch believes Montana’s original tax credit program, like the Washington scholarship, unlawfully promoted religion. Religious schools fulfill a religious mission, since teachers try to help students deepen their faith, he said.

However, Garnett and others objected to this characterization, arguing that religious schools are just as qualified to provide high-quality education as other private schools. If Montana officials want to help lower income students access better education opportunities, then they shouldn’t automatically disqualify religious institutions, Garnett said.

“It’s a permissible (secular) purpose to want to provide children with educational choice when they can’t afford it,” he said.

Potential effects

In addition to considering the purpose of the tax credit program, the Supreme Court may weigh the origins of the constitutional provision that led the Montana Department of Revenue to exclude religious schools. The law was created in the 19th century during a time of intense anti-Catholic sentiment, and it was a direct attack on Catholics seeking religious education.

“The law invokes that ugly history and continues to hurt children simply seeking better educational opportunities,” said Diana Verm, senior counsel for the Becket Fund for Religious Liberty, during a Jan. 14 press call.

Becket filed an amicus brief in Espinoza v. Montana Department of Revenue on the constitutional provision, which is often called a “Blaine Amendment” after the congressman who tried to pass a similar measure at the federal level. The Supreme Court can use the current case to undo the harmful policies nationwide, Verm said.

“I hope the outcome will be the end of discriminatory Blaine amendments,” she said.

Ravitch said the justices are unlikely to take such a bold step since Montana’s law barring state funding for religious schools was reaffirmed during a state constitutional convention in the 1970s. Lawmakers at the time acknowledged the provision’s problematic beginnings, but said it was good policy for the state to keep public money in public schools.

“They weren’t saying we don’t like religious schools. They were saying we don’t want to take away funding from public schools,” he said.

Whether or not they address Blaine amendments, which are on the books in nearly 40 states, the justices will likely rule that Montana engaged in unlawful religious discrimination, according to Ravitch, Garnett and many other legal scholars. In recent years, the court has been receptive to claims that policymakers are singling out religious individuals and institutions for mistreatment.

“What I suspect the Supreme Court will say is states are not allowed to discriminate between religious schools and other private schools that are providing the same educational services,” Garnett said.

At the very least, the justices will likely highlight the importance of providing equal opportunities to people of faith, Verm said.

“No matter what the decision, (the case) will make governments look at how they treat religious groups,” she said.

Even a narrow ruling in favor of the Montana moms could hold significant consequences for policymakers across the country, Ravitch said. If the Supreme Court requires the state to include religious schools in its tax credit program, the ruling could inspire new legal changes to a wide variety of funding laws, including those governing school voucher programs.

“If the court were to say that governments can’t exclude a religious entity from a funding program even if that funding program is for schools, that’s a major change,” Ravitch said.