High Court Slams Religious Bias in State Tax-Credit Scheme

Students walk down a stairwell between classes in 1997 at The Institute of Notre Dame in Baltimore. (Andre F. Chung/The Baltimore Sun via AP)

WASHINGTON (CN) — Montana discriminated against religious schools by excluding them from a tax-credit scheme meant to help low-income families afford private education, the Supreme Court ruled 5-4 Tuesday.

Led by Kendra Espinoza, three mothers of students who attended Stillwater Christian School in northwestern Montana brought the underlying challenge because a state tax law called Rule 1 prohibited them from paying Stillwater tuition using scholarship funds from a dollar-to-dollar credit program.

After a federal judge enjoined Rule 1, the Montana Supreme Court opted to invalidate the entire scholarship program rather than reach the constitutional question. This in turn brought the case to Washington.

“A state need not subsidize private education,” Chief Justice John Roberts wrote for the majority, who are all Republican appointed. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

Meanwhile Justice Ruth Bader Ginsburg argued in dissent — one of three of opinions from the court’s Democratic appointees — that Montana’s invalidation of their scholarship program remedied this case.

“Neither giving up their faith, nor declining to send their children to sectarian schools, would affect their entitlement to scholarship funding,” she wrote. “There simply are no scholarship funds to be had,” Ginsburg wrote.

Montana had sought to defend its conduct by invoking precedent from the 2004 Supreme Court case Locke v. Davey, which involved scholarships awarded by Washington state to funds postsecondary education efforts, as long as the students did not pursue devotional theology degrees.

The court found that Washington’s scheme did not violate the clause of the U.S. Constitution that protects free exercise of religion, but Roberts emphasized that Montana’s “no-aid” provision differed in prohibiting any aid to a school controlled by a church.

Rather than single out religious courses, Roberts added, “the no-aid provision bars all aid to a religious school ‘simply because of what it is,’ putting the school to a choice between being religious or receiving government benefits.”

“At the same time,” the 22-page ruling continues, “the provision puts families to a choice between sending their children to a religious school or receiving such benefits.”

Justice Stephen Breyer fought this distinction in a dissent, saying Locke is not relevant since Espinoza did not challenge the no-aid provision on its face.

“As applied, the provision affects only a scholarship program that, in effect, uses taxpayer funds to help pay for student tuition at religious schools,” he wrote. “We have long recognized that unrestricted cash payments of this kind raise special establishment concerns.

“If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom,” Breyer added.

Justice Samuel Alito joined the lead opinion in full and also concurred, highlighting how Montana’s no-aid law was modeled on failed federal legislation named after 1875 House Speaker James Blaine who encapsulated the nation’s antipathy for Irish immigrants at the time by attempting to outlaw aid to Catholic education.

Drawn by Thomas Nast in the 1870s, this cartoon was included in a brief by the Becket Fund for Religious Liberty in the Supreme Court case Espinoza v. Montana Department of Revenue. The cartoons showcase “both the level of invective that was employed against Catholics and the intricate iconography of the anti-Catholicism of the day,” according to the brief.

The Becket Fund for Religious Liberty included several political cartoons from the era in an amicus brief, and Alito’s concurrence highlights one where Catholic priests are depicted as crocodiles “slithering hungrily toward American children as a public school crumbles in the background.”

“Even if Montana had done more to address its no-aid provision’s past,” Alito wrote, “that would of course do nothing to resolve the bias inherent in the Blaine Amendments among the 17 states, by respondents’ count, that have not readopted or amended them since around the turn of the 20th century.

“Today’s public schools are quite different from those envisioned by Horace Mann, but many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home,” the opinion continues. “Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. The tax-credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice. The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that ‘the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’”

Diana Verm, senior counsel at Becket, called Montana’s court defeat long overdue.

“Blaine Amendments are a nasty part of our nation’s history, representing the worst kind of religious bigotry from our past,” Verm said in a statement. “The Supreme Court was right to recognize the unconstitutionality of Montana’s Blaine Amendment and we are confident that this ruling will rid our country of these pernicious laws.

As for Montana’s claim that the scheme ensures that taxpayer funds are not directed to religious organizations, Roberts wrote that an infringement on First Amendment rights “cannot be justified by a state’s alternative view that the infringement advances religious liberty.”

Indeed, “this court has repeatedly upheld government programs that spend taxpayer funds on equal aid to religious observers and organizations, particularly when the link between government and religion is attenuated by private choices,” Roberts wrote. “A school, concerned about government involvement with its religious activities, might reasonably decide for itself not to participate in a government program. But we doubt that the school’s liberty is enhanced by eliminating any option to participate in the first place.”

Espinoza cheered Tuesday’s ruling in a statement through her lawyers at Institute for Justice.

“I am thrilled that the courts ruled in favor of the Constitution and maintained a parent’s right to choose where their children go to school,” she said. “For our family, this means we can continue to receive assistance that is a lifeline to our ability to stay at Stillwater. For so many other families across America, this will potentially lean changing lives and positively altering the future of thousands of children nationwide. What a wonderful victory.”

Richard Komer at Institute for Justice likewise touted the court’s ruling as “show[ing] that it is never too late to correct an injustice, even one with as long and ignoble a pedigree as this one.”

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