SCOTUS Rules Montana Funding Program Can’t Exclude Religious Schools

In Espinoza v. Montana Department of Revenue, 591 U. S. ____ (2020), a divided Supreme Court held that the application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools in violation of the Free Exercise Clause.

Facts of the Case

The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools.

To reconcile the program with a provision of the Montana Constitution that bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, §6(1), the Montana Department of Revenue (Department) promulgated “Rule 1,” which prohibited families from using the scholarships at religious schools. Three mothers who were blocked by Rule 1 from using scholarship funds for their children’s tuition at Stillwater Christian School sued the Department in state court, alleging that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen.

The trial court enjoined Rule 1. Reversing, the Montana Supreme Court held that the program, unmodified by Rule 1, aided religious schools in violation of the Montana Constitution’s no-aid provision. The Montana Supreme Court further held that the violation required invalidating the entire program.

Majority Decision

By a vote of 5-4, the Supreme Court reversed, holding that the application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause. Chief Justice John Roberts wrote on behalf of the majority.

Chief Justice Roberts started his opinion by explaining that the Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” Citing Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___, 2017, Roberts went on to explain that the Court has previously held that held that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny.” In this case, the majority found that strict scrutiny similarly applies because the application of Montana’s no-aid provision excludes religious schools from public benefits solely because of religious status.

Under strict scrutiny, Montana’s tax-credit program could only survive if it is “narrowly tailored” to promote “interests of the highest order.”Applying the rigorous standard, the majority rejected all of Montana’s arguments in favor of the program.

The majority rejected the Department’s argument that the no-aid provision actually promotes religious freedom by ensuring that taxes are not directed to religious organizations, and it safeguards the freedom of religious organizations by keeping the government out of their operations. “An infringement of First Amendment rights, however, cannot be justified by a State’s alternative view that the infringement advances religious liberty,” Roberts wrote. “Our federal system prizes state experimentation, but not ‘state experimentation in the suppression of free speech,’ and the same goes for the free exercise of religion.”

The majority also rejected the Department’s argument that the invalidation of the entire program prevented a free exercise violation. As the Chief Justice explained:

When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. Had the Court recognized that this was, indeed, “one of those cases” in which application of the no-aid provision “would violate the Free Exercise Clause,” the Court would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program.

Dissent

All of the Court’s liberal justices dissented, although for slightly different reasons. Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which Justice Elena Kagan joined. Justice Ginsburg argued that because the entire program was struck down, no one was treated differently based on religion.

Justice Stephen Breyer authored a dissenting opinion, in which Justice Kagan joined in part. Justice Breyer wrote, “The majority’s approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent.”

Justice Maya Sotomayor also filed her own dissenting opinion. “Today’s ruling is perverse,” she wrote. “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.”