Does the Montana constitutional provision barring all religious entities from participating in a generally available benefit program—a student scholarship fund—violate the Religion Clauses of the First Amendment or violate the Equal Protection Clause of the Fourteenth Amendment?
This case asks the U.S. Supreme Court to consider the extent to which there is “room for play in the joints” between the Religion Clauses in the First Amendment of the U.S. Constitution, namely the Free Exercise Clause and the Establishment Clause. While the Free Exercise Clause forbids the government from burdening religious practice, the Establishment Clause forbids the government from advancing it. But in some instances, the government may operate in the sphere of religion—what is known as the “room for play between the joints”—without running afoul of either provision. Article X, Section 6(1) of the Montana Constitution excludes religious entities from participating in some generally applicable funding programs. In drafting the provision, legislators sought to erect a greater barrier between church and state. However, the provision may also have unduly burdened religious practice. Kendra Espinoza, Jeri Ellen Anderson, and Jaime Schaefer—mothers who wish to use state-administered scholarship funds to send their children to religious schools—argue that Article X, Section 6(1) violates the Religion Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by forbidding scholarship recipients from using the funds to cover tuition expenses at religiously-affiliated schools. The Montana Department of Revenue counters that Article X, Section 6(1) does not violate the Free Exercise Clause or the Equal Protection Clause and does not create hostility toward religion in violation of the Establishment Clause. Instead, the Department contends that Article X, Section 6(1) creates a greater barrier between church and state. The outcome of this case will impact other religious entities’ ability to participate in government benefit programs, and it will impact the national debate over school choice programs.
Questions as Framed for the Court by the Parties
Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.
In 2015, the Montana State Legislature (the “Legislature”) established a Tax Credit Program wherein a taxpayer could receive dollar-for-dollar tax credit up to $150 for the taxpayer’s donations to a Student Scholarship Organization (“SSO”) in Montana. Espinoza v. Montana Department of Revenue at 4–5. An SSO is a charitable organization that uses the bulk of its revenue (largely from donations) to fund tuitions for students attending a Qualified Education Provider (“QEP”). Id. at 5. A QEP is any school that meets the requirements laid out in Section 15-30-3102(7) of the Montana Code; essentially, any private school. Id. at 5–6.
Article X, Section 6(1) of the Montana Constitution prohibits the State from directly or indirectly providing financial aid to sectarian schools, which are schools “controlled in whole or in part by any church, sect, or denomination.” Mont. Const. art. X, § 6(1). The Montana Department of Revenue (the “Department”), which is responsible for implementing the Tax Credit Program, determined that the program violated Article X, Section 6(1) by indirectly aiding sectarian schools because the definition of QEP included most religiously-affiliated schools. Espinoza v. Montana Dept. of Revenue at 7. Accordingly, the Department enacted Rule 1, which narrowed the definition of QEP by excluding any religiously-affiliated private schools. Id. at 7–8.
On December 24, 2015, the Petitioners, Kendra Espinoza, Jeri Ellen Anderson, and Jaime Schaefer (collectively, “Espinoza”), sued the Department in the District Court of the Eleventh Judicial District of Montana (the “District Court”) challenging the constitutionality of Rule 1. Id. at 8. After the Department enacted Rule 1, Espinoza’s children, who attended a religiously-affiliated school, were barred from receiving scholarships under the Tax Credit Program. Id. at 3, 8. Espinoza argued that Rule 1 violated the free exercise clauses of the Montana Constitution and the U.S. Constitution because it indirectly penalized parents for sending their children to religiously-affiliated schools. Id. at 8. The Department countered that the Tax Credit Program would be unconstitutional without Rule 1 because the former broad definition of QEP allowed the State to indirectly fund religiously-affiliated schools in violation of Article X, Section 6(1) of the Montana Constitution. Id. The District Court determined that the Tax Credit Program was constitutional as originally enacted in 2015 because the program was not an expenditure of state funds and therefore did not trigger Article X, Section 6(1). Id. at 9. The District Court struck down Rule 1 and granted summary judgment in favor of Espinoza. Id.
The Department appealed the District Court’s decision to the Montana Supreme Court. Id. The Montana Supreme Court reversed the District Court’s decision, holding that the Tax Credit Program itself violated Article X, Section 6(1) of the Montana Constitution. Id. at 26. In reaching its decision, the Montana Supreme Court explained that legislators intended for Article X, Section 6(1) to broadly prohibit any use of state funds to aid sectarian schools. Id. at 11–13. The Montana Supreme Court found that not only did the Department exceed its authority when it enacted Rule 1, but also that Rule 1 was superfluous because the underlying Tax Credit Program unconstitutionally used public funds to aid sectarian schools. Id. at 19, 25. Accordingly, on December 18, 2018, the Montana Supreme Court struck down the Tax Credit Program. Id. at 26.
Espinoza filed a petition for a writ of certiorari with the U.S. Supreme Court on March 12, 2019. Petition for Writ of Certiorari at 1. The Court granted certiorari on June 28, 2019. Espinoza v. Montana Dept. of Revenue. The Court seeks to resolve whether invalidating a religiously neutral, generally available scholarship program, which indirectly provides public funds to sectarian schools, violates the Establishment Clause, Free Exercise Clause, or Equal Protection Clause of the U.S. Constitution. Brief for Petitioners, Espinoza, et al. (“Espinoza”) at i.
FREE EXERCISE CLAUSE
Espinoza argues that the application of Article X, Section 6(1) violates the First Amendment Free Exercise Clause rights of parents who wish to send their children to religiously-affiliated schools. Brief for Petitioners, Espinoza, et al. (“Espinoza”) at 16. As Espinoza explains, the Free Exercise Clause prohibits the government from discriminating against particular religions and religion in general. Id. at 14–15. Espinoza relies primarily on the U.S. Supreme Court’s decision in Trinity Lutheran Church v. Comer, which invalidated a generally applicable grant program because the program conditioned grant eligibility on a church’s religious “status,” “belief,” and “conduct.” Id. at 15. Article X, Section 6(1), according to Espinoza, similarly conditions eligibility of a generally applicable government benefit on parents’ religious beliefs, conduct, and status, because some parents send their children to religious schools to align their children’s education with their religious beliefs, practices, and identity. See id. at 17–18. Espinoza further asserts that Article X, Section 6(1) discriminates against religious schools because of their religious “character” and “identity.” Id. at 18–19. Therefore, Espinoza argues, because Article X, Section 6(1), as applied, discriminates against religious beliefs, conduct, and status, it must survive strict scrutiny. Id. at 20. Espinoza contends, however, that it cannot withstand strict scrutiny because the Court in Trinity Lutheran already rejected the Department’s rationale—that a state has a compelling interest in creating greater separation of church and state than what already exists under the federal Establishment Clause. Id. at 20–21.
Relatedly, Espinoza asserts that Article X, Section 6(1) unconstitutionally discriminates against religious uses of scholarship funds. Id. at 21. Although the Court in Trinity Lutheran did not address the constitutionality of discrimination based on “religious use” of funding, Espinoza contends that the distinction between discrimination based on the “religious status” of the recipient and the “religious use” of the funding is meaningless because the First Amendment broadly protects “the free exercise of religion, not just religious belief.” Id. at 21–22. Indeed, Espinoza notes that a parent’s religion might require religious schooling for a child, which in turn might require the use of scholarship funds. Id. at 22. Therefore, Espinoza argues, conditioning funding eligibility based on religious use creates the same “hostility toward religion” as conditioning funds based on religious status. Id. at 22–23.
Espinoza also argues that this case is distinguishable from Locke v. Davey, where the Court upheld a state’s conditioning of a college scholarship program on its recipients not using the scholarship to pursue a major in devotional theology. Id. at 23–24. According to Espinoza, the Court in Locke specified that a religious exclusion in a student-aid program is only permissible in limited circumstances. Id. at 24. Espinoza notes these circumstances exist where the religious exclusion is narrow, not hostile toward religion, not forcing a recipient to choose between receiving government aid and exercising the recipient’s religion, and “is justified by a historic substantial and historic interest.” Id. at 24. In contrast, Espinoza argues: first, Article X, Section 6(1) broadly bars all religious options for families seeking to use student scholarship programs; second, Section 6(1) creates religious hostility by expansively excluding “all religious schools;” third, Section 6(1) forecloses any opportunity to participate in the scholarship program, if a student attends a religious school in Montana; and fourth, this case relates to religious education in general and does not pose a unique state interest like the interest in Locke (not funding clergy training). Id. at 25–26.
The Department counters that Article X, Section 6(1) neither directly nor indirectly prohibits the free exercise of religion in violation of the Free Exercise Clause. Brief of Respondents, Montana Department of Revenue, et al. (“Montana”) at 11. According to the Department, different from the church’s choice in Trinity Lutheran (i.e., to participate in a generally available benefit program or maintain its status as a church), Article X, Section 6(1) does not prohibit any school or student from exercising their religion, even if the lack of scholarship funds is financially burdensome. Id. at 11, 13. Similarly, the Department argues that because the Montana Supreme Court struck down the entire Tax Credit Program, there is no benefit available to anyone, religious or non-religious. Id. at 14. Thus, the Department continues, families cannot be coerced into abandoning their religious practices because even if they “abandoned their faith, they still would not get scholarships.” Id. In support of the Department, Religion Law Scholars add that Espinoza’s claim does not fall within the type of government action that the constitutional safeguards in the Religion Clauses were meant to protect because Espinoza fails to identify “any actual discrimination” violating constitutional principles that prevent the government from favoring or disfavoring religion. Brief of Amici Curiae Religion Law Scholars, in Support of Respondents at 22. The Religion Law Scholars maintain that, historically, the Religion Clauses were intended to prevent the government from singling out religion by favoring or disfavoring it; here, however, Article X, Section 6(1) equally applies to religious and nonreligious parents. Id. To hold for Espinoza, the Religion Law Scholars argue, would “redefine discrimination to include any government action that addresses religion in a manner not required by the Religion Clauses themselves.” Id.
Further, the Department disputes Espinoza’s contention that discrimination based on religious status and religious use is the same. Brief of Respondents at 36–37. The Department argues that, if any discrimination occurred, the Montana Constitution discriminated solely based on the use of state funding for religious education, which the U.S. Constitution does not expressly prohibit. Id. at 37. The Department points out that this argument is supported by the historical record. Id. at 28. Indeed, the Department notes that, at the Founding, many state constitutions prohibited religious institutions from using public aid. Id. The Department adds that this interpretation of the Free Exercise Clause is supported by writings authored by James Madison, the Clause’s primary drafter. Id. Therefore, the Department argues, “prohibition” as used in the Free Exercise Clause, was not understood to encompass a state’s prohibition on the provision of public funds for religious uses. Id. at 28, 30–33.
Finally, contrary to Espinoza’s reading, the Department contends that Locke stands for the proposition that a state may bar scholarship funding for “education designed to induce religious faith,” including at religious schools for primary and secondary education. Id. at 34. The Department argues that Article X, Section 6(1) functions similarly to the prohibition in Locke, where the state barred funding for the instruction of a member of the church’s future ministry; here, Montana is similarly prohibiting funding for religious school teachers acting as part of the ministry in educating students. Id. at 35.
EQUAL PROTECTION CLAUSE
Espinoza argues that Article X, Section 6(1) violates the Equal Protection Clause of the Fourteenth Amendment because, historically, it was “born of bigotry” and it continues to perpetuate discriminatory animus. Brief for Petitioners at 29. Espinoza explains that the Equal Protection Clause prohibits drawing classifications based on “inherently suspect” protected groups, like religion. Id. at 28. Espinoza points out that Article X, Section 6(1) is a “Blaine Amendment”—an amendment many states adopted in the Nineteenth Century to prevent public funding of Catholic schools while preserving “Protestant-oriented public schools.” Id. at 31. Therefore, Espinoza argues, because religious discriminatory animus was a “motivating factor” in the adoption of Article X, Section 6(1) and because the provision has a discriminatory effect on all types of religious schooling today, the provision violates the Equal Protection Clause. Id. at 30–31, 44–45.
The Department counters that there is no unequal treatment between religion and nonreligion in Montana because when the Montana Supreme Court applied Article X, Section 6(1) to the Tax Credit Program, it denied aid to all private schools, whether sectarian or secular, impacting both religion and nonreligion in the same way. Brief of Respondents at 51. In addition, the Department argues, Espinoza’s historical argument overlooks analogous “no-aid provisions” that trace back to the Founding that were not motivated by anti-Catholic bigotry. Id. at 41. Indeed, the Department maintains that Montana’s no-aid provision is actually a means of promoting religious liberty by erecting a greater barrier between the government and religious schools. Id. at 42. Finally, the Department asserts that even if Montana’s original “Blaine Amendment” was discriminatory when it was first adopted, that animus was purged when Montana adopted a new constitution in 1972, more than one-hundred years after the provision was originally passed. Id. at 18–19, 49.
Espinoza argues that Article X, Section 6(1) violates the Establishment Clause because it expresses a hostility to religion by excluding religious entities from a generally applicable funding program. Brief for Petitioners at 46. As Espinoza explains, the Establishment Clause requires that the government remain neutral between different religions and between religion and nonreligion. Id. at 45–46. Espinoza asserts that Article X, Section 6(1) is a form of “passive hostility” because it fosters a bias against religion by leaving in place the discriminatory animus created by the Blaine Amendments. Id. Article X, Section 6(1) is also a form of “active hostility,” according to Espinoza, because the government continues to use it as an “engine of discrimination” to exclude all religious entities from participating in the Tax Credit Program. Id. Therefore, Espinoza concludes, analyzed under any of the tests applied in Establishment Clause cases, Article X, Section 6(1) creates hostility towards religion while also depriving families of educational choice. Id. at 46–47.
The Department counters that Article X, Section 6(1) does not violate the Establishment Clause because it is not hostile to religion. Brief of Respondents at 52. Instead, the Department maintains, Article X, Section 6(1) advances Establishment Clause principles by creating a greater barrier between church and state; here, by ensuring that religious schools do not become dependent on state funding. Id. at 17–23, 52. The Department argues that the Establishment Clause allows states to decide whether and how to fund religious entities. Id. at 53. Thus, the Department continues, because Montana had the ability to prohibit funding to religious entities in the first place, expressing this same policy determination in Montana’s Constitution does not create hostility toward religion over nonreligion in violation of the Establishment Clause. Id. at 53–54.
EFFECT ON OTHER GOVERNMENT BENEFITS TO RELIGIOUSLY-AFFILIATED ENTITIES
The American Center for Law and Justice (“ACLJ”) argues in support of Espinoza that the Montana Supreme Court’s holding—that a state may exclude religiously-affiliated entities from participating in generally applicable funding programs—will set a dangerous precedent for all other states. Brief of Amicus Curiae American Center for Law and Justice, in Support of Petitioner at 4. The ACLJ asserts that upholding the Montana Supreme Court’s decision might signal to other states that they may exclude religiously-affiliated entities from participating in any kind of public benefit program, which would amount to “gratuitous hostility” against persons interacting with such entities. Id. at 4, 11. For example, the ACLJ continues, if the Court upholds the Montana Supreme Court’s decision, a state could charge a student group from a religious school for admission to a public park or state museum although such public services are generally free to the public. Id. at 4.
Various religious and civil rights organizations (“Organizations”) contend in support of the Department that upholding the Montana Supreme Court’s decision will not affect religiously-affiliated entities in other benefit programs. Brief of Amici Curiae Religious and Civil-Rights Organizations, in Support of Respondents at 25. The Organizations explain that property-tax exemptions for churches and tax deductions for charitable donations have a “long historical pedigree” in America. Id. at 26–27. The Organizations contend that, in such contexts, the public funding is aimed at promoting community well-being rather than at promoting religion. Id. Meanwhile, tuition-tax-credit programs, the Organizations continue, are relatively new and directly promote religious education, thereby raising Establishment Clause concerns. Id.
A group of state legislative leaders (“Leaders”) in support of Espinoza argue that the Montana Supreme Court’s decision threatens benefits that school choice programs bring to low-income families. Brief of Amicus Curiae Rusty Bowers, Speaker of the Arizona House of Representatives, and other State Legislative Leaders (“Leaders”), in Support of Petitioners at 18. School choice programs, the Leaders explain, enable parents to select a school that best fits their child’s educational needs by providing parents with public education funding, irrespective of whether the selected school is sectarian or secular. Id. at 18. The Leaders posit that, without such public funding, low-income families are often forced to send their children to “one-size-fits-all” public schools that may not address a child’s unique educational needs. Id. School choice programs, Leaders continue, have worked efficiently and effectively across states by increasing students’ attendance rates, improving students’ passage rates, and making schooling more affordable for low-income families. Id. at 18-22. Eighteen states (“States”) in support of Espinoza explain that upholding the Montana Supreme Court’s decision would encourage other state courts to interpret their states’ Blaine Amendments to eliminate all public benefits, even incidental, to religiously-affiliated schools. Brief of Amici Curiae States of Oklahoma, et al., in Support of Petitioners at 28. The States argue that this could severely limit the choice of schools available to parents and their children, which would harm children benefitting from the school choice programs who are often disabled and/or from low-income families. Id.
Public Funds Public Schools (“PFPS”) in support of the Department argues that school choice programs cause more harm than benefit to students. Brief of Amicus Curiae Public Funds Public Schools (“PFPS”), in Support of Respondents at 14. PFPS asserts that the data relied on by Espinoza’s amici are based on cherry-picked, outdated, and non-peer-reviewed research. Id. at 19. Instead, PFPS continues, large-scale peer-reviewed research proves that school choice programs cause harm by diverting funds from public schools to private religiously-affiliated schools. Id. at 15. Indeed, National School Boards Association (“NSBA”) in support of the Department explains that, in reality, school choice programs mostly benefit students from wealthy backgrounds because, even with school choice funding, low-income families often cannot afford the unfunded portion of private school tuition. Brief of Amici Curiae National School Boards Association et al., in Support of Respondents at 26. Therefore, the NSBA contends, wealthy families take advantage of school choice funding to reduce private school costs while their poorer counterparts have no choice but to attend public schools. Id. Additionally, PFPS asserts that students who attend private schools through school choice programs perform worse academically, scoring lower on reading and math tests, than their peers in public schools. Brief of PFPS at 16–18.
- Adam Liptak: Montana Battle Over Aid for Religious Schools Reaches Supreme Court, New York Times (Dec. 23, 2019).
- The Editorial Board: Church, School and the Supreme Court, Wall Street Journal (June 30, 2019).
- Linda Greenhouse: Religious Crusaders at the Supreme Court’s Gates, New York Times (Sept. 12, 2019).