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SCOTUS Rules Montana Unconstitutionally Discriminated Against Religious Schools by Eliminating Tax-Credit Scholarship Program


The Supreme Court of the United States ruled 5-4 on Tuesday in favor of parents claiming to have been discriminated against on the basis of religion.

The case, Espinoza v. Montana Department of Revenue, pits two constitutional guarantees against one another: the right of free religious exercise and the right not to have a government that establishes an official religion. First, some background on how the controversy came about.

In 2015, the Montana legislature started a program which allowed tax credits for individuals and businesses who donate to private scholarship organizations. Up to donations of $150, people who donated to scholarship funds for private schools got tax credits equal to their contributions. Those funds were then distributed to deserving families to use at private schools of their choosing.

The problem was that most of Montana’s private schools are religious schools. When the Montana Department of Revenue saw that these scholarship funds were essentially using taxpayer money to support religious schools, it got a little itchy with the whole church/state thing, so it passed a rule prohibiting families from redeeming scholarship tax credits for gifts to religious schools.

Lawsuits erupted, and the Montana Supreme Court ruled that the rule (prohibiting use of funds for religious schools) was illegally discriminating against religious institutions.  As a remedy, the court decided to simply throw out the entire tax-credit program.  No one would get tax credits or scholarship money.

Single mom Kendra Espinoza, along with two other mothers, sued Montana, arguing that they’d been “counting on” the scholarship money to able to keep their children in Christian schools. According to the plaintiffs, shutting down the scholarship program amounted to discriminating against them on the basis of religion.

Tuesday’s Supreme Court ruling broke down along the expected ideological lines: Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh in the majority; Justices Stephen BreyerRuth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in dissent. The Court ruled that Montana’s “fine, now no one gets scholarships” decision did in fact amount to unlawful religious discrimination. And the justices had quite a bit to say on the matter.

Chief Justice Roberts penned the majority opinion. In it, he slammed Montana for having made its decision solely on the basis of recipient schools’ religious status.  Roberts went back into American history, reasoning that, “In the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones,” and explaining that any constitutional arguments against funding parochial schools are just wrong.  Roberts repeatedly slammed his colleague, Justice Breyer, for his take on government entanglement with religion.

In a conspicuous footnote, Roberts chided Breyer, saying:

Justice Breyer sees “no meaningful difference” between concerns animating bans on support for clergy and bans on support for religious schools. But evidently early American governments did.

Roberts went on to accuse Breyer of being willing to, “afford much freer rein to judges than our current regime.” Applying strict scrutiny – the highest level of constitutional scrutiny – to the case, Roberts found that Montana did not have right to separate church and State “more fiercely” than it might be separated under the Federal Constitution; Montana’s rights in that regard are limited by the Free Exercise Clause.

Roberts also made short work of Montana’s argument that its decision to nix the scholarship program actually promoted religious freedom. Montana had argued that its decision, “protects the religious liberty of taxpayers by ensuring that their taxes are not directed to religious organizations, and it safeguards the freedom of religious organizations by keeping the government out of their operations.”  Roberts’ majority, however, saw things quite differently, holding that Montana’s elimination of the scholarship program amounted to, “discrimination against religious schools and the families whose children attend them.”  Standing up for those victims of discrimination, Roberts quoted past case law, saying “They are ‘member[s] of the community too,’ and their exclusion from the scholarship program here is ‘odious to our Constitution’.”

In a separate concurrence joined by Justice Gorsuch, Justice Thomas had quite a bit to say on the matter. Although concurring in the decision, Thomas railed against the Court, saying that “this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights.”  Thomas wrote that SCOTUS needs some course-correction, and until that’s done, “individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.” Thomas chastised the Court for having the, “unfortunate tendency to prefer certain constitutional rights over others. “

Justice Alito also contributed a concurring opinion, taking the opportunity to throw in a political cartoon. Alito wrote at length about the tribulations of American Catholics, and the history of religious discrimination. Alito reasoned that the scholarship program “helped parents of modest means do what more affluent parents can do: send their children to a school of their choice,” and dispensed with Ginsburg’s take that Montana did not discriminate when it put “everyone in the same boat.” Alito wrote:

The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that “[t]he 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.”

Justice Gorsuch used his concurrence to talk about the people involved in this case. Gorsuch discussed plaintiff Espinoza: a single mom “who works three jobs,” and who had “planned to use scholarships to help keep her daughters at an accredited religious school.” Espinoza had big plans, “That is, until the Montana Supreme Court struck down the tax credit program.”

Gorsuch positioned himself as a champion of religion in a world hell-bent on secularization, writing:

You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public benefit discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.

Justice Ginsburg dissented, using all the bluntness court-watchers have come to expect from RBG. She argued that the plaintiff and others are neither pressured nor prevented from sending their kids to religious schools.

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

“True,” Ginsburg continued, “petitioners expected,” to receive scholarship money, and were then “disappointed” to find the the program had been discontinued.  Dashed expectations, however, do not amount to discrimination.

Justice Breyer, joined in part by Justice Kagan also dissented, writing that this case presents just the kind of religious entanglement that the establishment clause meant to prevent. Breyer pointed out an important argument against a finding of discrimination: the religious schools weren’t the ones suing in this case.  The schools themselves did not compete for scholarships, and in no way joined the litigation. “We are instead faced with a suit by parents who assert that their free exercise rights are violated,” because they cannot use, “taxpayer-supported scholarships to attend the schools of their choosing.”

Breyer criticized the Court for ignoring its own “play-in-the-joints” doctrine. The Establishment and Free Exercise Clauses operate with inherent tension, wrote Breyer. As a result—and as SCOTUS has acknowledged in past cases — a rigid judicial approach simply won’t work.  Instead, “there is room for play in the joints” – a flexibility that Breyer argued, should “play a determinative role here.”  Breyer conceded that, “It is not easy to discern” where the Establishment Clause ends and the Free Exercise clause begins, but, “If any room exists between the two Religion Clauses, it must be here.”

Justice Sotomayor penned a separate dissent, slamming the majority for even taking up the case at all:

Not only is the Court wrong to decide this case at all, it decides it wrongly.

Sotomayor called Tuesday’s ruling “perverse,” saying that, “without any need or power to do so,” the Court forced Montana “to reinstate a tax-credit program that the Constitution did not demand in the first place.”

[image via Eric Baradat/AFP/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos