Supreme Court says Constitution protects Montana scholarship program that indirectly funds religious schools

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The Supreme Court ruled 5-4 on Tuesday in a high-profile case involving the Constitution’s separation of church and state, reversing a lower court ruling that invalidated a scholarship program on the basis that it indirectly provided state funds to religious schools. 

Chief Justice John Roberts wrote for the court. He was joined by fellow conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. The court’s four Democratic appointees dissented. 

The case concerned a scholarship program enacted in Montana in 2015, which provided individuals and businesses with up to $150 in tax credits to match donations to private, nonprofit scholarship organizations.

Shortly after the program was enacted, the Montana Department of Revenue put in place a rule that barred scholarship recipients from using funds from the program to pay for religious schools. 

That rule was intended to comply with a provision of Montana’s state constitution, which forbids “any direct or indirect appropriation or payment from any public fund or monies … for any sectarian purpose.” 

Similar prohibitions, known as Blaine Amendments, exist in the constitutions of 36 other states, and in many cases stemmed from anti-Catholic sentiments. 

Three mothers who relied on the scholarship program to help pay for their childrens’ tuition at a  nondenominational Christian school challenged the department’s rule, arguing that it violated the First Amendment’s religious protections. 

A trial court in Montana sided with the mothers, but the Montana Supreme Court reversed the decision, reasoning that the tax-credit program was in effect indirectly paying for tuition at religious schools, in violation of the state constitution. 

The court struck down the tax-credit program in its entirety. 

The mothers took the case to the Supreme Court, arguing that the lower court decision was impermissibly hostile to religion. 

“Prohibiting all religious options in otherwise generally available student-aid programs rejects that neutrality and shows inherent hostility toward religion,” their attorney, Richard Komer, told the justices in a filing.

The Montana Department of Revenue countered that the state Supreme Court decision “protects religious freedom.”

The state constitution’s prohibition on funding religious schools “does not restrain individual liberty,” wrote Adam Unikowsky, an attorney for the state. “Rather, it restrains the government by barring state aid to religious schools.” 

Montana’s tax-credit scholarship program was similar to programs run in 18 states, according to a friend-of-the-court brief submitted to the justices. 

The case is Espinoza v. Montana Department of Revenue, No. 18-1195.

This is breaking news. Check back for updates. 

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