Supreme Court Strikes Down Montana Ban on Students Using State Scholarships to Attend Religious Schools

What’s the story?

• The Supreme Court issued a 5-4 ruling Tuesday in a case known as Espinoza v. Montana Department of Revenue that struck down a decision by the Montana Supreme Court prohibiting the use of state scholarships at religious schools. The case concerned a program created by the Montana Legislature that gave tax credits to those who donate to organizations that award scholarships for private school tuition. 
• In an effort to apply a provision of the Montana Constitution prohibiting government aid to schools controlled by religious groups, the state’s Dept. of Revenue established “Rule 1” which banned the use of the program’s scholarships at religious schools over the objections of the Montana Attorney General, who argued it likely violated the U.S. Constitution. 
• Three mothers who were blocked by Rule 1 from using scholarship funds for their children’s tuition at Stillwater Christian School sued the Dept. of Revenue in state court. The Montana Supreme Court held that the program aided religious schools in violation of the Montana Constitution, and held that violation required the invalidation of the entire program.
• In Tuesday’s ruling in Espinoza, the U.S. Supreme Court held that Montana’s application of the no aid rule discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the U.S. Constitution. It effectively restores the status quo that was established by the Montana Legislature before the Montana Supreme Court’s error of federal law.

What did the justices say?

• Chief Justice John Roberts wrote the majority opinion, which was joined by Justice Clarence Thomas, Justice Samuel Alito, Justice Neil Gorsuch, and Justice Brett Kavanaugh which read in part:

“The Department argues that, at the end of the day, there is no free exercise violation here because the Montana Supreme Court ultimately eliminated the scholarship program altogether. According to the Department, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally available benefit. Two dissenters agree. Justice Ginsburg reports that the State of Montana simply chose to “put all private school parents in the same boat” by invalidating the scholarship program, and Justice Sotomayor describes the decision below as resting on state law grounds, having nothing to do with the federal Free Exercise Clause.

The descriptions are not accurate. The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program.

The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. But the Court’s error of federal law occurred at the beginning. 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 a such a state law violation, the Court would have had no basis for terminating the program. Because the elimination of the program flowed directly from the Montana Supreme Court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision, or as resting on adequate and independent state law grounds.”

• Justice Thomas filed a concurring opinion which was joined by Justice Gorsuch, while Justice Alito & Justice Gorsuch each filed their own concurring opinions.
• Justice Ruth Bader Ginsburg filed a dissenting opinion that was joined by Justice Elena Kagan, Justice Stephen Breyer filed a dissenting opinion which Kagan joined in part, and Justice Sonia Sotomayor filed a dissenting opinion. Justice Ginsburg’s dissenting opinion read in part:

“Find the “beginning” of the Montana Supreme Court’s decision erroneous, this Court regards the state court’s ultimate judgment as irrelevant. In the Court’s recounting, the Montana court first held that religious schools must be excluded from the scholarship program ― necessarily determining that the Free Exercise Clause permitted that result ― and only subsequently struck the entire program as a way of carrying out its holding. But the initial step described by this Court is imaginary. The Montana court determined that the scholarship program violated the no-aid provision because it resulted in aid to religious schools. Declining to rewrite the statute to exclude those schools, the state court struck the program in full. In doing so, the court never made religious schools ineligible for an otherwise available benefit, and it never decided that the Free Exercise Clause would allow that outcome. 

Thus, contrary to this Court’s assertion, the no-aid provision did not require the Montana Supreme Court to “exclude” religious schools from the scholarship program. The provision mandated only that the state treasury not be used to fund religious schooling. As this demonstrates, that mandate does not necessarily require differential treatment. The no-aid provision can be implemented in two ways. A state may distinguish within a benefit program between secular and sectarian schools, or it may decline to fund all private schools. The Court agrees that the First Amendment permits the latter course. Because that is the path the Montana Supreme Court took in this case, there was no reason for this Court to address the alternative…

Nearing the end of its opinion, the Court writes: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools because they are religious. Because Montana’s Supreme Court did not make such a decision ― its judgment put all private school parents in the same boat ― this Court had no occasion to address the matter. On that sole ground, and reaching no other issue, I dissent from the Court’s judgment.”

— Eric Revell

(Photo Credit: iStock.com / FatCamera)