SALT LAKE CITY — Supreme Court justices clashed Wednesday over how to define religious discrimination as they heard a case that could change school funding laws nationwide.
The case, Espinoza v. Montana Department of Revenue, involves a scholarship program originally intended to benefit both secular and religious private schools. Soon after the program launched, state officials decided to exclude religious institutions in order to prevent public money from supporting faith-based education.
This policy shift outraged a group of moms whose children used the scholarship to attend religious schools, and the Montana Supreme Court eventually shuttered the entire program. Now, the Supreme Court will decide whether the state’s actions violated constitutional religious freedom protections and clarify the conditions under which religious organizations can be excluded from public funding programs.
During oral arguments, justices appeared split along ideological lines, with conservative justices emphasizing potential harm done to religious families and liberals highlighting the value of reducing entanglement between the government and religion.
“There’s been ... since the Founding Fathers, a long history of people who, for nondiscriminatory reasons, for reasons related to their belief in the separation of church and state, have taken the position that the state should not give money to religious institutions,” said Justice Sonia Sotomayor, who is part of the liberal camp.
However, as recently as 2017, the Supreme Court has said religious institutions can’t be excluded from all funding programs simply because they’re religious, said Justice Brett Kavanaugh, who is conservative. The court typically requires inclusion if the program serves a secular purpose.
“Funding religious schools generally or the training of clergy is an establishment clause concern, but ... it’s a separate issue when you set up a neutral benefit program” to provide police or fire protection or scholarships,” Kavanaugh said. “The question in this case, it seems to me, is which side of that line this comes on.”
Throughout the case, Montana officials and their supporters have maintained that religious schools, like clergy training, serve a religious purpose and that it’s therefore appropriate to keep them from receiving public funds.
The state has a constitutional provision barring government money from going to faith-based schools, which the Montana Supreme Court cited when it ruled against religious families and disbanded the scholarship program in 2018.
“The tax credit program violates (the state’s) stringent prohibition on aid to sectarian schools,” wrote Judge Laurie McKinnon in the ruling.
A strong barrier between church and state benefits both institutions, said Adam G. Unikowsky, who represented Montana before the Supreme Court.
“The no-aid clause does not prohibit anyone’s free exercise of religion. To the contrary, it protects religious freedom by protecting religious schools from government influence and ensuring that government cannot use aid as leverage to influence the content of religious education,” he said.
However, the religious families involved in the case and their supporters reject this characterization, arguing that students are being singled out for mistreatment because of their faith.
“If the court had shut down the program because it included Muslim schools or African American schools, there’s no question that would be unconstitutional,” said Richard D. Komer, who argued on behalf of religious families. Exclusion of all religious private schools is unconstitutional, too, he said.
But Unikowsky argued the Constitution sometimes requires behavior that is viewed by some as discriminatory. Religion is treated differently than race under the law, he said.
“I just want to be clear, we’re not defending religious bigotry here, OK? (But) I think no-aid clauses have a (rational) justification,” Unikowsky said.
Holly Hollman, general counsel for the Baptist Joint Committee for Religious Liberty, shared a similar assessment in her statement on the case.
“It is neither surprising nor discriminatory that Montana’s constitution, like those in other states, protects religious liberty by avoiding even the indirect funding of religion. No-aid provisions ensure that state funds are preserved for state purposes and not used to advance religion,” she said.
The Baptist Joint Committee is one of a wide variety of institutions closely watching the case, since it could affect debates surrounding school vouchers and other funding programs. More than 50 religious freedom advocacy groups, educational organizations and policymakers filed briefs in the case in order to explain how the court’s eventual decision could impact their constituents.
“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,” said Frank Ravitch, a law professor at Michigan State University, to the Deseret News last week.
During oral arguments, conservative justices rejected the idea that a ruling in favor of religious families would lead to large-scale changes.
“Nobody’s claiming the state has an obligation to make particular grants to religious institutions or to provide any funding for private education at all,” said Justice Samuel Alito.
However, if lawmakers choose to create such a program, they need to ensure that all applicants are treated fairly, he implied.
Legal experts don’t agree on how the Supreme Court will rule, but most predict the decision, which is expected before the end of June, will come down to a 5-4 vote. Chief Justice John Roberts will likely be the swing vote.