WASHINGTON — A divided Supreme Court on Tuesday endorsed a Montana tax incentive program that indirectly helps private religious schools, a major victory for those who want to see more public funding of religious institutions.
Chief Justice John Roberts, writing for a conservative majority in the 5-4 ruling, said the Montana Supreme Court was wrong to strike down the program because of a provision in the state constitution that forbids public funds from going to religious institutions. The U.S. Constitution’s protection of religious freedom prevails, he said.
“A state need not subsidize private education,” Roberts wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
The court’s four most consistent conservatives joined his opinion, while the court’s four liberals dissented.
The decision was a big win for school-choice advocates, such as Education Secretary Betsy DeVos, who favor government support of students seeking faith-based education. Public school advocates said such programs take away resources that should be used to improve public schools.
At issue was an initiative passed by the Montana Legislature in 2015 that provided dollar-for-dollar tax credits up to $150 to those who donated to scholarship programs for low-income parents to send their children to private schools.
The program made no distinction as to whether parents could use the scholarships at religious or secular schools. About 70% of private schools in the state are religious.
The Montana Supreme Court said that measure ran counter to a state constitutional prohibition against using public funds for religious institutions and schools. Instead of saying the program could fund only secular schools, it struck down the tax credit program.
Montana is one of about 40 states that exclude religious organizations from government funding available to others.
Nebraska is not one of them. However, the Nebraska Constitution prohibits public funds from going to any private school or institution of learning, with a limited exception for special education students.
State lawmakers have tried several times to pass a tax credit program similar to the one in Montana. State Sen. Lou Ann Linehan of Elkhorn introduced the most recent bill and named it her priority for the current legislative session. The bill, which has a price tag of $10 million in its first year, remains in committee.
Montana told the U.S. Supreme Court that it is reasonable for its constitution to prohibit direct or indirect aid to religious organizations.
“The No-Aid Clause does not prohibit any religious practice,” Montana said in its brief. “Nor does it authorize any discriminatory benefits program. It simply says that Montana will not financially aid religious schools.”
Its constitution prohibits using public funds 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.”
But Montana was called before a Supreme Court increasingly skeptical of such stark lines between church and state. A majority of justices in 2017 said Missouri could not ban a church school from requesting a grant from a state program that rehabilitated playgrounds. They have since been joined by Justice Brett Kavanaugh, who has signaled that other such restrictions deserve the court’s attention.
The challenge was brought by the libertarian law organization Institute for Justice on behalf of Kendra Espinoza, a single mother who sends her two children to a Christian school in Kalispell.
The organization has made school choice a priority and has tried for years to get the Supreme Court to take on state constitutional amendments forbidding public aid to religious schools. It has waged war on the “Blaine Amendments” that swept though the country in the 1800s on a wave of anti-Catholicism. Montana’s amendment was adopted in 1884, before the state was admitted to the union.
The free-exercise clause of the First Amendment prohibits government from discriminating against religion, the organization says, including the parents who want to use the scholarship funds for schools that align with their faiths.
The Trump administration supported the challenge to the Montana court’s decision and hailed the Supreme Court’s ruling, which “removes one of the biggest obstacles to better educational opportunities for all children,” the White House said in a statement.
The high court’s liberals said the Montana Supreme Court had eliminated discrimination problems by ending the program. They said their conservative colleagues were too eager to fix a problem that no longer existed.
Montana denied that its constitutional prohibition was about religious bigotry. It was included in a rewrite of the state constitution in 1972 and was meant to insulate religion from government intrusion and to protect public schools, the state said.
World-Herald staff writer Martha Stoddard contributed to this report.Photos: Our best staff images from June 2020