Updated June 30, 2020 6:27 pm ET
Supreme Court Strikes Down Montana Ban on State Aid to Church Schools
Justices reinstate tax credit program subsidizing private school scholarships
WASHINGTON—The Supreme Court ruled Tuesday that states can’t exclude church schools from programs benefiting their private, nonsectarian counterparts, bolstering a conservative drive to expand public support for religious 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,” wrote Chief Justice John Roberts, joined by fellow conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.
The case came from Montana, whose constitution, like that of more than 30 other states, forbids public support for religious schools. It “bars religious schools from public benefits solely because of the religious character of the schools,” the court said, running afoul of the First Amendment protection for free exercise of religion.
The court’s conservative majority is sympathetic toward religious claims, and its decisions have expanded religious expression in the public sphere and increased the eligibility of religious organizations for taxpayer support.
Four liberal justices dissented Tuesday, but on varying grounds they expressed in three separate opinions. The ruling “weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” said one dissenter, Justice Sonia Sotomayor.
In 2015, the Montana Legislature enacted a program providing up to a $150 tax credit for donations to scholarship funds supporting students attending private schools. In setting up the program, the state Department of Revenue excluded religious schools, citing a provision in the Montana constitution that prohibits state aid to schools “controlled in whole or in part by any church, sect, or denomination.”
Parents who sought scholarships to send their children to Stillwater Christian School in Kalispell, Mont., sued, arguing that the exclusion violated their rights under the federal Constitution. At the Montana Supreme Court, they won a Pyrrhic victory; rather than expand the program to religious schools, the state court struck down the entire plan, eliminating the opportunity for scholarships to private schools whether religious or secular.
The parents appealed to the U.S. Supreme Court, which saw things their way in its 5-4 decision. The issue wasn’t whether religious and secular schools were treated equally, Chief Justice Roberts wrote. Rather, he said, “the question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program.”
The answer was yes, he wrote, overturning the Montana court decision and implicitly reinstating the scholarship program. “The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons,” he said.
“Today is a great day for the right of parents to direct the education and upbringing of their children,” said Scott Bullock, president of the Institute for Justice, an advocacy group that represented the plaintiffs. “We look forward to building upon this very important decision to expand educational opportunities for thousands of parents throughout the country,” he said, particularly in 14 states with strong restrictions on public aid to religious schools.
“This means we can continue to receive assistance that is a lifeline to our ability to stay at Stillwater,” said the lead plaintiff, Kendra Espinoza.
The program has been operating during the litigation, although only one organization, Big Sky Scholarships in Havre, Mont., participates, according to the court. The organization awarded about 50 $500 scholarships annually in the 2017 and 2018 academic years to students primarily attending Christian schools.
Gov. Steve Bullock, a Democrat who allowed the tax-credit bill to become law without his signature, said that “Montanans have a constitutional right to a quality public education. I’m disappointed in today’s decision, and will continue the fight for public education in Montana.”
“This decision undermines true religious freedom and is the latest in a disturbing line of Supreme Court cases attacking the very foundations of the separation of church and state,” said Daniel Mach, director of the religious-freedom program at the American Civil Liberties Union, which filed a brief in the case.
Tuesday’s decision built on a 2017 precedent concerning a Missouri program that issued grants to resurface playgrounds. Writing for a 7-2 court, Chief Justice Roberts said the state couldn’t exclude church schools from seeking grants because of their religious character.
But two liberals who voted in the 2017 majority dissented Tuesday, arguing that a better analogy came from 2004, when the court upheld a Washington state scholarship program even though it excluded students seeking pastoral ministry degrees. Unlike secular activities such as playground maintenance, church schools exist to foster religion, Justice Stephen Breyer wrote, joined in part by Justice Elena Kagan.
“It is why at least some teachers at religious schools see their work as a form of ministry,” Justice Breyer wrote, and ministry is something taxpayers cannot be compelled to support.
Justice Kagan also joined Justice Ruth Bader Ginsburg’s separate dissent, asserting that no constitutional violation occurred because the Montana court decision treated religious and secular schools equally.
Although they joined the majority opinion in full, several conservative justices wrote separately to explain their own views on religious rights.