By Lisa Soronen
Espinoza v. Montana Department of Revenue raises an issue the U.S. Supreme Court has long wrestled with: If a state-aid program violates a state constitutional prohibition against mixing church and state because religious institutions may participate, does discontinuing that program violate the federal constitution’s free exercise or equal protection clauses?
Montana statutes allow taxpayers to receive tax credits for contribution to Student Scholarship Organizations that give students scholarships to attend private schools, including religious schools.
The Montana Department of Revenue adopted Rule 1 disallowing religious schools from participating in the program because it concluded their participation would violate Montana’s constitution. Parents of students attending religiously-affiliated private schools challenged Rule 1.
The Montana Supreme Court held that the Tax Credit Program violates the Montana Constitution.
According to the court, the provision of the Montana Constitution entitled “Aid prohibited to sectarian schools,” is a “broader and stronger” prohibition against aid to sectarian schools than other states’ prohibitions.
The Tax Credit Program allows the legislature to “indirectly pay tuition at [qualifying schools including religious schools] by reimbursing parents for donating to SSOs, donations funded with money the parents would have otherwise used to pay their child’s tuition.” The court concluded: “Although the Tax Credit Program provides a mechanism of attenuating the tax credit from the SSO’s tuition payment to a religiously-affiliated [schools], it does not comport with the constitutional prohibition on indirectly aiding sectarian schools.” The Montana Supreme Court concluded Rule 1 is “superfluous” because the Tax Credit Program is unconstitutional.
In one sentence, the Montana Supreme Court stated that prohibiting state aid to religious schools in this case doesn’t violate the federal Constitution.
In Locke v. Davey (2004) the Supreme Court held that a State of Washington scholarship program that excluded students pursuing degrees in devotional theology didn’t violate the Free Exercise Clause. Washington’s constitution prohibits providing state funds to students pursuing degrees that are “devotional in nature or designed to induce religious faith.”
Petitioner-parents note in the certiorari petition that “while some courts have read Locke to prohibit the wholesale exclusion of religious options from student-aid programs, other courts have read the decision for the exact opposite conclusion.”
More recently, in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) the Supreme Court held that Missouri violated a church’s federal free exercise rights when it refused, on the basis of religion, to award the church a grant to resurface its playground with recycled tires.
Missouri’s constitution prohibits public funds from being used “directly or indirectly, in aid of any church, sect, or denomination of religion.” Petitioner-parents note Trinity Lutheran was decided on “narrow grounds and did not address the student-aid question.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.