The Supreme Court on Tuesday delivered a landmark decision that strengthens the right of religious schools to obtain public funds, ruling that Montana violated the First Amendment when it excluded faith-based educators from a scholarship program supported by public monies.
Chief Justice John Roberts delivered the decision for a 5-4 Court, over three dissents from the liberal justices. The decision comes as surveys show support for President Donald Trump slipping among religious conservatives and could provide a needed buoy to his supporters as a Court he purported to stack with conservative jurists has delivered victories for liberals on abortion and LGBT rights in recent days.
"A state need not subsidize private education," Roberts wrote. "But once a state decides to do so, it cannot disqualify some private schools solely because they are religious."
Education Secretary Betsy DeVos, long a champion of school vouchers, was on hand for oral arguments before the High Court in January. DeVos and GOP lawmakers like Sen. Ted Cruz (R., Texas) have proposed a $5 billion tax credit to support private education, through which participating states provide dollar-for-dollar credits to taxpayers who contribute to scholarship programs.
The decision is a victory for religious conservatives and school choice groups, who were deeply invested in a case they viewed as a potential landmark. In the past, school choice advocates maintained a modest posture in the High Court, asking the justices to uphold low-dollar voucher programs in Ohio and Arizona. In Tuesday's case, they posed a grander proposition—the Constitution requires states to include religious schools in their student aid programs.
The Trump administration supported the plaintiffs in Tuesday’s case. White House press secretary Kayleigh McEnany praised the decision, saying President Donald Trump "believes that school choice is a civil rights issue, and that no parent should be forced to send their child to a failing school."
The Montana legislature enacted a school choice program in 2015 that provided a tax credit of up to $150 for donations to nonprofit scholarship funds. In turn, those organizations make payments to qualifying families who wish to send their children to private schools, including religious institutions. About two-thirds of private schools in Montana have a religious affiliation.
Shortly after the program took effect, a state agency issued a rule prohibiting recipient families from using their scholarship awards at religious schools. The agency cited the Montana constitution's no religious aid provision as justification for the rule. Three plaintiffs—Kendra Espinoza, Jeri Anderson, and Jaime Schaefer—who wish to send their children to Stillwater Christian School using scholarship funds challenged the rule in state court. The Montana Supreme Court struck down the tax credit program in its entirety, prompting an appeal to the justices.
Teachers' unions and leftwing civil liberties groups see the case as a serious threat to public education and religious neutrality in civic life. The American Federation of Teachers (AFT), the second-largest teachers' union in the nation, filed an amicus brief urging the justices to uphold Montana's no religious aid law.
"Make no mistake, if a majority of the justices side with the petitioners, the Supreme Court will be responsible for unleashing a virtual earthquake in this country that threatens both religious liberty and public education," AFT president Randi Weingarten said after oral arguments in January.
The decision follows a 2017 case, Trinity Lutheran Church v. Comer, in which a 7-2 Court said Missouri was wrong to exclude a church from a grant program that finances playground resurfacing. Though the decision only addressed Missouri’s program and went no further, the justices said denying eligible applicants a grant solely because of their religious status is "odious to the Constitution."
Roberts built on that 2017 case on Tuesday, saying the Montana constitution’s no religious aid rule discriminates based on religious status. That violates the First Amendment guarantee to free practice of religion, the Court said.
"The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran," Roberts wrote.
More than 30 states have similar provisions in their constitutions banning support for "sectarian" schools. Many were enacted in the 1870s—a period of sustained persecution against Catholics by a Protestant majority—with the specific intent of excluding Catholic institutions from the public fisc. The chief justice wrote that those laws, called Blaine amendments, were "born of bigotry" against Catholics in Tuesday’s ruling.
"The no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the free exercise clause," Roberts wrote.
Eliminating Blaine amendments has been a top priority of religious freedom cause lawyers.
"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," said Diana Verm, a lawyer at the Becket Fund for Religious Liberty.
Public support for religious education also has a rich founding-era pedigree, Roberts wrote. The federal government made land grants to religious schools, while Congress supported denominational schools in the capital and financed churches that ran schools for Native Americans.
In a solo opinion, Justice Neil Gorsuch sounded a note of warning about the Court’s approach. Though he joined the majority opinion, he worried that the Court’s focus on status-based discrimination is under-inclusive, failing to encompass religious activity. He voiced that same concern in the 2017 Trinity Lutheran decision.
"What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands?" Gorsuch wrote.
In dissent, Justice Ruth Bader Ginsburg said the state court decision, which scrapped the tax-credit program in its entirety, cured any First Amendment problems. Without a scholarship program, there’s no occasion for discrimination, and the matter is ended, she argued.
"The decision below puts petitioners to no choice: Neither giving up their faith, nor declining to send their children to sectarian schools, would affect their entitlement to scholarship funding," Ginsburg wrote. "There simply are no scholarship funds to be had."
The case is No. 18-1195 Espinoza v. Montana Department of Revenue.
Espinoza v. Montana Departm... by Washington Free Beacon on Scribd
Updates 12:38 p.m., 2:01 p.m.: This post has been updated with further information.