Supreme Court Considers Parents Using Public Money for Religious Schools

January 22, 2020 Updated: January 22, 2020
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WASHINGTON—A tax-credit program for needy students in Montana shouldn’t be shut down merely because some of the money may end up in the coffers of private religious schools, the Supreme Court heard Jan. 22.

“What we’re saying here is that … the state can’t discriminate on the basis of religion … [and] that is what they are doing in this case,” said the lawyer for the parents in the case, Richard Komer of the Institute for Justice, a public interest law firm.

Chief Justice John Roberts officiated at oral arguments in the case, cited as Espinoza v. Montana Department of Revenue, just eight hours after he finished presiding over the first day of the impeachment trial of President Donald Trump across the street in the U.S. Senate.

The petitioners are three low-income mothers who needed the scholarship funds to keep their children in Stillwater Christian School, a nondenominational school in Kalispell, Montana.

The program gave individuals and corporations a tax credit for giving as much as $150 annually to a nonprofit student scholarship organization helping poor students attend private schools.

Parents sued after the state’s Department of Revenue ruled that those scholarship funds could not be used for religious schools. A trial judge enjoined the rule and then the Montana Supreme Court struck down the program on Dec. 12, 2018, declaring it unconstitutional on a 5–2 vote.

The program, according to the state court, allowed the state legislature to “indirectly pay tuition at private, religiously affiliated schools,” contrary to Montana law. Because the families may use the scholarships at religious schools, the program provided aid to religious institutions and thereby entangled government with religion, contrary to the Establishment Clause of the First Amendment to the U.S. Constitution, along with provisions in the Montana state constitution barring state aid to “sectarian schools.”

The Trump administration supported the petitioners at the hearing.

“The Montana Supreme Court had no power under federal law to invalidate anything,” Jeffrey B. Wall, principal deputy U.S. solicitor general, said. “It relied on a state constitutional provision that is inconsistent with and preempted by the federal free-exercise clause.”

Komer told the Supreme Court the program was “not aiding the schools,” but, in fact, was “aiding the parents.”

“You have a choice to make about the parents here. You can either view them as mere inconsequential conduits through which public funds flow to the religious schools they choose or you can regard them … as free and independent decision-makers who are being given the power to choose a religious education or a secular education in private schools.”

Komer said he wasn’t arguing that the state wasn’t allowed to fund public schools.

“We are saying that when the legislature, when the state makes the decision to empower parents to exercise their right to choose and direct their children’s education, that the state cannot distinguish between parents who want a religious education for their children and parents who want a secular private education for their children.”

Justices Sonia Sotomayor and Ruth Bader Ginsburg seemed to defend the Montana Supreme Court ruling, which, to borrow expressions used throughout the hearing, leveled down the program, or got rid of it, rather than leveled up the program, meaning made it available for use at all schools.

Ginsburg suggested that the parents had no standing to bring the case because the treatment they received was no different from what other parents received who sent their children to secular private schools.

“Where is the harm?” she said.

Justice Elena Kagan added, “Because of the [Montana] Supreme Court’s ruling, whether you go to a religious school or you go to a secular private school, you’re in the same boat at this point,” she said. “There is no discrimination at this point going on, is there?”

Justices Samuel Alito and Brett Kavanaugh spoke of the anti-religious, and particularly anti-Roman Catholic, bias of the so-called Blaine Amendment, a failed amendment to the U.S. Constitution that would have prohibited direct government aid to educational institutions with religious affiliations. Despite the failure of the amendment at the federal level, three-quarters of the 50 states later adopted similar amendments in their state constitutions.

Laws banning funding of religious schools are “certainly rooted in … grotesque religious bigotry against Catholics,” Kavanaugh said.

Alito challenged Adam G. Unikowsky, the lawyer for Montana.

“Do you really want to argue that the reason why a lot of this popped up beginning, coincidentally, in the 1840s, at the time of the Irish potato famine—that had nothing to do with discrimination based on religion?”

Unikowsky dodged the question, saying, “It’s a complex history, and there’s good reasons and there’s bad reasons, and it depends on the state.”