Case No. 18-1195 | Mont.
Preview by Taylor Dowd, Senior Online Editor
Montana’s scholarship program funds students attending qualifying private schools in the state. The Department of Revenue instituted a rule disqualifying religious schools from eligibility for the scholarship program, with the belief that the rule was necessary for the tax credit program, which gave a tax credit to those who donated to the program, to be constitutional under the Montana state constitution. The Montana Constitution contains a “no-aid” clause, adopted in 1972 to narrow the scope of the similar original clause, stating that government entities and public corporations “shall not make any direct or indirect appropriation or payment from any public fund or monies . . . 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.” Mont. Const. art. X, § 6.
Parents of Montana students who attended religiously affiliated schools and therefore were ineligible for the scholarship program under the Montana Department of Revenue rule brought suit. The Montana Supreme Court held that the tax credit program violates the Montana Constitution, finding that the rule disqualifying religious schools exceeded rulemaking authority, and that the tax credit program allows the Montana legislature to indirectly fund religious schools which is impermissible under the no-aid provision.
The Supreme Court will decide whether invalidating the scholarship program because it funds religiously affiliated schools violates the First Amendment Religion Clauses or the Equal Protection Clause of the U.S. Constitution.
Petitioners argue that Montana’s decision to exclude religiously affiliated schools from the scholarship program demonstrates hostility to religion that violates the Free Exercise Clause. They assert that according to substantial precedent, the U.S. Constitution demands government neutrality toward religion. Respondent, the State of Montana, argues that although Montana may provide indirect aid to religiously affiliated schools through the scholarship program, it is not required to do so under the First Amendment Free Exercise Clause. Respondent also adds that allowing individuals to decide not to fund religiously affiliated schools through the tax credit program supports religious freedom, and that a government’s choice to separate church and state past what is required by the U.S. Constitution by excluding religious institutions from funding is a longstanding tradition.
Petitioners and supporting amici, including the United States, also claim that the no-aid provision in the Montana Constitution, also called a “Blaine Amendment” which in various forms appears in several state constitutions, is rooted in anti-Catholic animus and therefore should be unconstitutional. Petitioners explain that when discrimination is a “substantial or motivating factor” for enacting a law, the law violates the Equal Protection Clause. Brief for Petitioners at 29, Espinoza v. Mont. Dep’t of Revenue, No. 18-1195 (U.S. filed Sept. 11, 2019) (quoting Hunter v. Underwood, 471 U.S. 222, 225 (1985)). An amicus brief from the Baptist Joint Committee filed in support of Respondent, however, claims the evidence that the provision at issue has a hostile origin is lacking, and adds that these amendments responded to concerns about the impermissible establishment of religion. Respondent believes the no-aid provision meets rational basis review because it was supported by rational reasoning of the state congress, and therefore is valid under the Equal Protection Clause.