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Justices Confront New Dispute Over Funding for Religious Schools

Jan. 22, 2020, 9:51 AM

Tension over the U.S. Constitution’s two religion clauses will play out at the Supreme Court when the justices hear argument Wednesday in a dispute over Montana’s funding of religious schools.

The use of tax credits as an incentive for generating donations to a scholarship program for public and private education is the latest test of interpreting the Free Exercise and Establishment clauses.

The Free Exercise Clause forbids the government from interfering in the practice of religion, and the Establishment Clause prohibits it from favoring one religion over another.

There is some “play in the joints between what the Establishment Clause permits and the Free Exercise Clause compels,” the Supreme Court has said.

In Espinoza v. Montana Department of Revenue, parents who want to take advantage of the state’s tax incentives to fund scholarship programs say the Free Exercise Clause prohibits the state from treating religious schools differently from other private schools.

Montana, however, points to the “no-aid” provision in its state constitution that prohibits public money from going to religious schools.

But that’s exactly what Montana’s scholarship scheme does, the Montana Supreme Court said. “The Tax Credit Program permits the Legislature to subsidize tuition payments at religiously-affiliated private schools,” it found.

The state high court scrapped the entire program for religious and secular private schools.

There can be no discrimination since neither secular nor religious school now receive any funding, said the ACLU’s Daniel Mach, who heads the group’s Program on Freedom of Religion and Belief.

Espinoza is the next logical step after the Supreme Court’s decision in Trinity Lutheran,” said Alliance Defending Freedom attorney John Bursch, who filed an amicus brief in support of the parents challenging the lower court’s ruling.

In that case, brought by ADF attorneys, the Supreme Court said Missouri violated the federal Free Exercise Clause when it refused to give a grant to resurface a preschool playground simply because it was affiliated with a church.

The “state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause,” the Supreme Court said in 2017.

If the Supreme Court rules against Montana, it’s likely that all similar state no-aid provisions are unconstitutional, Bursch said.

That doesn’t “mean that a state must provide funding for private religious schools,” he said. Only “that if the government provides funding for private secular schools, it must place private religious schools on an equal footing.”

Mach said it is “deeply troubling that the Supreme Court is even considering whether to compel Montana taxpayers to subsidize religious education.”

“Parents in Montana certainly have the right to choose private religious education for their children, but they shouldn’t expect the state to foot the bill,” he said.

The case is Espinoza v. Montana Department of Revenue, U.S., No. 18-1195, to be argued 1/22/20.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at; John Crawley at