Judiciary

SCOTUS Appears to Side With Public Funding for Religious Schools

The Court heard arguments in a case over a Montana public scholarship fund.

Political Editors · Jan. 24, 2020

After hearing arguments in Espinoza v. Montana Department of Revenue, a case in which parents contend that the Montana Supreme Court’s decision to strike down a school scholarship program was in violation of their constitutional right to religious exercise and equal protection, a majority of the U.S. Supreme Court appeared poised to overrule the state court and granted a win for religious liberty.

As The Wall Street Journal reported, “The program at issue was relatively small; it provided up to a $150 tax credit to residents who contributed a like amount to organizations providing scholarships to private schools, whether secular or religious. The Montana Supreme Court struck down the entire program, finding it violated the state constitution’s ban on public support for sectarian schools.”

The crux of the issue is whether allowing religious schools to receive public funds is a violation of the First Amendment’s so-called Establishment Clause. Siding with the parents, Deputy Solicitor General Jeffery Wall argued, “You can’t deny a generally available public benefit to an entity that’s otherwise qualified based solely on its religious character.”

Citing the 2017 Trinity Lutheran Church v. Comer case, in which SCOTUS in a 7-2 ruling held that Missouri couldn’t exclude religious schools from receiving grant funding to resurface playgrounds, Justice Samuel Alito observed that the state wasn’t funding “private education at all, but if they choose to provide scholarships that are available to students who attend private schools, they can’t discriminate against parents who want to send their children to schools that are affiliated in some way with a church. That’s the simple argument. And it’s hard to see that that’s much different from Trinity Lutheran.”

Justice Brett Kavanaugh put it bluntly, asking whether Montana’s constitutional ban against public aid to sectarian schools stemmed from “grotesque religious bigotry,” a reference to the unsuccessful 1875 Blaine Amendment that sought to ban any taxpayer funds from going to sectarian schools — an effort that clearly targeted Catholic schools.

Chief Justice John Roberts also weighed in, wondering whether Montana’s decision to end the scholarship program entirely wasn’t akin to the actions of several Southern communities back in the 1950s and ‘60s, which shut down their public parks and schools in an effort to avoid desegregation. The High Court is expected to issue its ruling early this summer.

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