A sharply divided U.S. Supreme Court on Tuesday ruled that a Montana state constitutional provision barring aid to religious schools discriminated against those schools and families seeking to benefit from a state tax credit for scholarship donations.
鈥淢ontana鈥檚 no-aid provision bars religious schools from public benefits solely because of the religious character of the schools,鈥� Chief Justice John G. Roberts Jr. wrote for the court in a 5-4 decision. 鈥淭he provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.鈥�
The decision came in (Case No. 18-1195), which involves a $150 state tax credit for contributions to funds that provide scholarships for students to attend private schools, including religious schools.
The chief justice鈥檚 opinion appeared to cast doubt on provisions in as many as 30 state constitutions that bar aid to religious schools.
鈥淎 state need not subsidize private education,鈥� Roberts wrote. 鈥淏ut once a state decides to do so, it cannot disqualify some private schools solely because they are religious.鈥�
U.S. Secretary of Education Betsy DeVos, a longtime private school choice advocate who had attended the January arguments in the case, called the decision 鈥渁 historic victory for America鈥檚 students.鈥�
鈥淭his decision represents a turning point in the sad and static history of American education, and it will spark a new beginning of education that focuses first on students and their needs,鈥� DeVos said in a statement. 鈥淚鈥檓 calling on all states to now seize the extraordinary opportunity to expand all education options at all schools to every single student in America.鈥�
But Randi Weingarten, the president of the American Federation of Teachers, which supported the state and its no-aid provision, said the decision was 鈥渁 seismic shock that threatens both public education and religious liberty.鈥�
鈥淣ever in more than two centuries of American history has the free exercise clause of the First Amendment been wielded as a weapon to defund and dismantle public education,鈥� Weingarten said in a statement.
Two of the three parents who challenged the state鈥檚 decision had attended the with their children: Kendra Espinoza and her daughters Naomi and Sarah; and Jeri Anderson and her daughter, Emma.
On Tuesday, the mothers were elated by the Supreme Court decision.
鈥淲e were yipping and hollering this morning,鈥� Espinoza said in a conference call with reporters. 鈥淭oday is a big victory for our family and for so many other families.鈥�
Anderson said 鈥渉aving access to these scholarships is going to make a tremendous difference to Emma鈥檚 future education. She is at a school where she is thriving and which she loves.鈥�
The three children attend Stillwater Christian School, a private religious school in Kalispell, Mont.
Gov. Steve Bullock of Montana, a Democrat who had allowed the tax credit program to go into effect without his signature but had joined the Department of Revenue in defending the state constitution鈥檚 no-aid provision, said in a statement that 鈥淢ontanans have a constitutional right to a quality public education. I鈥檓 disappointed in today鈥檚 decision, and will continue the fight for public education in Montana.鈥�
The chief justice鈥檚 opinion was joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, and Brett M. Kavanaugh, with Thomas, Alito, and Gorsuch filing concurring opinions.
The court鈥檚 more-liberal members issued or joined three separate dissents, offering different grounds.
Justice Ruth Bader Ginsburg, in a dissent joined by Justice Elena Kagan, said there was no burden put on the First Amendment free exercise of religion rights of the parents or religious schools in the case because the Montana Supreme Court had struck down the tax credit program in its entirety based on the no-aid provision.
鈥淎ccordingly, the Montana Supreme Court鈥檚 decision does not place a burden on [parents鈥橾 religious exercise,鈥� Ginsburg said. 鈥淭here simply are no scholarship funds to be had.鈥�
Justice Sonia Sotomayor, in a dissent for herself, said the majority was wrong to decide the merits of the case because the tax credit program was struck down by the Montana Supreme Court in its entirety.
鈥淭oday鈥檚 ruling is perverse,鈥� Sotomayor said. 鈥淲ithout any need or power to do so, the court appears to require a state to reinstate a tax-credit program that the Constitution did not demand in the first place.鈥�
Justice Stephen G. Breyer wrote a dissent, joined by Kagan in part.
鈥淭he majority鈥檚 approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the [First Amendment鈥檚] religion clauses are intended to prevent,鈥� Breyer wrote.
Implications for Other States
The Montana program was passed by a Republican-majority legislature in 2015 and modeled on similar programs in 18 other states.
Montana鈥檚 revenue department, which administers the tax credit, issued an administrative rule that barred the scholarships from being used at religious schools. It cited a state constitutional provision that says the state 鈥渟hall not make any direct or indirect appropriation or payment from any public fund or monies ... for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.鈥�
Montana is among some 38 states that have state constitutional provisions that bar aid to religion. Some call these measures 鈥渂aby Blaine鈥� amendments after the federal Blaine amendment, introduced in Congress in 1875 by James G. Blaine, then a member of the House of Representatives from Maine.
The amendment would have made the U.S. Constitution鈥檚 bar on government establishment of religion applicable to the states and declared that no state tax money 鈥渟hall ever be under the control of any religious sect.鈥�
Although the federal measure failed, more than 20 states subsequently adopted state constitutional measures that in some form or other bar government aid to religious denominations and religious schools.
Montana鈥檚 rule limiting the scholarships to secular private schools was challenged as a violation of the free-exercise clause of the U.S. Constitution by parents who sought to use the scholarship aid at religious schools.
The Montana Supreme Court the entire tax-credit program, for both religious and nonreligious schools, based on the state constitutional provision. But it stayed its decision, and money from scholarship contributors claiming the tax credit in the 2018 tax year was used by a private organization, Big Sky Scholarships, to give $500 scholarships to about 40 families during the 2019-20 school year.
Erica Smith, a senior attorney with the Institute for Justice, an Arlington, Va.-based legal organization that represented the parents who challenged the restriction, said the decision means the Montana tax credit program will be back in operation and the private scholarship fund will be able to resume issuing aid to families.
Scott Bullock, the president and general counsel of the institute, said on the call, 鈥淭he court has now removed the largest state constitutional obstacle to education choice by holding that pernicious Blaine Amendments in state constitutions cannot be used to block choice for parents.鈥�
Sanjay Talwani, a spokesman for the Montana Department of Revenue, said via email that the department was still assessing the decision and what it means for the tax credit.
鈥橞igoted Code Language鈥�
The chief justice鈥檚 discussion of the role of the Blaine Amendment and 鈥渂aby Blaine Amendments鈥� generally was spare, particularly compared with Alito鈥檚 concurrence.
Roberts adopted language written by Thomas in a 2000 plurality opinion, in , that 鈥渢he Blaine Amendment was 鈥榖orn of bigotry鈥� and 鈥榓rose at a time of pervasive hostility to the Catholic Church and to Catholics in general.鈥欌��
While 鈥渢he historical record is complex,鈥� Roberts said, 鈥渢he no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the free exercise clause.鈥�
Alito joined the chief justice鈥檚 opinion in full, but wrote 13 pages in a concurrence that outlined the history of the federal and state Blaine measures, even reproducing in his opinion an 1871 cartoon published in Harper鈥檚 Weekly, which in his view captured the anti-Catholic 鈥渇eelings of the day鈥� by depicting 鈥淐atholic priests as crocodiles slithering hungrily toward American children as a public school crumbles in the background.鈥�
鈥淢ontana鈥檚 no-aid provision retains the bigoted code language used throughout state Blaine Amendments,鈥� Alito said.
Steven K. Green, a law professor at Willamette University in Salem, Ore., who had supporting Montana, said he was disappointed but not surprised by the decision.
鈥淭o a certain extent, the chief justice鈥檚 opinion was predictable,鈥� Green said. 鈥淭he bottom line is that the chief justice goes to the edge, but he doesn鈥檛 push these no-aid provisions over the cliff. But I think the opinion today effectively makes these provisions unenforceable.鈥�
Green said he was somewhat disappointed that the dissenters did not take Roberts or Alito 鈥渢o task for their use of history. I think they realized it was unwinnable at this point.鈥�
