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Supreme Courts Montana tax credit case could blur the line between church and state

The Supreme Court is poised to begin wiping away the line between church and state in what appears to be an innocuous case about a small tax credit program that provides scholarships to private schools.

Espinoza v. Montana Department of Revenue could represent a sharp turn to the right for the freedom of religion in America. The Founding Fathers understood the importance of a strong demarcation between church and state, allowing people to freely exercise their own religion while preventing the creation of a government religion.

Espinoza v. Montana Department of Revenue could represent a sharp turn to the right for the freedom of religion in America.

Imagine you want to send your child to a private school, but you can’t afford the tuition. Your state decides to create a program to pay for part of the cost of tuition. The program is funded by taxpayers who agree to donate to the program in exchange for a tax credit.

So far, so good. Except that the scholarships funded by the program can be used at both religious and secular schools. This means taxpayer dollars are funding a government program that provides money to religious schools.

In 2015, Montana created a tax-credit scholarship like the hypothetical described above. In fact, 18 states have similar programs.

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But shortly after Montana implemented its program, the state Department of Revenue concluded that under the Montana Constitution, the scholarships could only be used at secular schools, not religious institutions. Three low-income mothers who wanted to use the scholarship money to send their children to religious schools sued in state court.

The Montana Supreme Court then invalidated the entire scholarship program, concluding that it violated the state Constitution by aiding religious institutions. The Montana Constitution includes a so-called “Blaine Amendment,” which limits the ability of states to use taxpayer funds to support religious institutions. Thirty-seven states have similar amendments in their state constitutions.

After their loss in the Montana Supreme Court, the three mothers petitioned the U.S. Supreme Court for relief. They argue that the state’s Blaine Amendment is itself invalid under the U.S. Constitution. This would mean all 37 states that have such amendments are also violating the U.S. Constitution by prohibiting the use of public money for religious schools. The state counters that it is well within its rights to promote secular education while not similarly sponsoring religious education.

But the main argument being put forth by the three mothers is that the Montana Supreme Court’s invalidation of the program violates the free exercise clause of the U.S. Constitution, because the decision means they are denied a public benefit available to others at secular private schools. Put another way, the plaintiffs argue the Montana Supreme Court’s opinion violates the U.S. Constitution because it shows animus toward religious institutions by virtue of the fact that religious schools are exempted from a scholarship program available in secular private schools.

The First Amendment of the U.S. Constitution promises Americans the ability to freely exercise their religion (the free exercise clause) and the 14th Amendment requires, generally, equal treatment under the law (the equal protection clause).

If the Supreme Court decides that Montana has violated the U.S. Constitution, it could mean that all states that provide benefits (here tuition assistance) to secular schools must also provide the same benefits to religious schools.

We have some recent guidance from the court about how it might decide this case. Only two terms ago, the court struck down a Missouri program that provided grants to resurface playgrounds at secular schools but denied those benefits for religious schools. In that case, Trinity Lutheran, the justices tried to narrow the scope of the ruling to just the issue of playground surfaces. But they could only kick the can down the road for so long.

Trinity Lutheran was a purposefully narrow decision on a relatively narrow issue. While we have become accustomed to split decisions on controversial issues like religious rights, the Trinity Lutheran decision was not close. Chief Justice John Roberts wrote for a seven-person majority.

It is unlikely that Roberts, or any of his conservative colleagues, will be able to draft another narrow opinion that wins over two liberal justices.

The Montana scholarship program brings up broader issues of religious freedom and it is unlikely that Roberts, or any of his conservative colleagues, will be able to draft another narrow opinion that wins over two liberal justices.

There may, however, be an escape hatch for members of the court hoping to avoid a controversial decision on religion in what is already a blockbuster term. The court could decide that the mothers challenging the ruling do not having standing to sue in the U.S. Supreme Court because the Montana Supreme Court tossed the whole program, not just the scholarships that were used at religious schools. During oral arguments this week, Justice Elena Kagan suggested that “There is no discrimination at this point going on, is there?

However, it is far from clear that the court will continue to put off the big constitutional questions raised by Montana’s tax-credit scholarship program. At least four members of the conservative majority of the court appear eager to broaden the court’s reading of the free exercise clause. But a free and open society requires a separation between the government and religious institutions. It arguably harms and waters down both to entangle them.

The U.S. Supreme Court may open the door to requiring states to fund religious institutions when they fund secular ones. This is wrong-headed but probable after oral arguments Tuesday. Now we wait for the decision in June.

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