By John A. Sparks


Sometimes, the facts of a case have an emotional appeal in addition to a strong constitutional basis. Espinoza v. Montana certainly qualifies.

Kendra Espinoza, a hard working (three jobs) and determined single mom, decided to take her two daughters out of the local public schools and enroll them in Stillwater Christian School in Kalispell, Montana. She explained that she “wanted them to be able to read the Bible and be taught how to pray, and taught from that faith-based perspective.”

Espinoza was only able to afford the private Christian school tuition because of a scholarship program that the Montana legislature had put in place in 2015. The legislation created a state tax credit of up to $150 for individuals or businesses which made donations to organizations that funded scholarships for private school tuition, which included Christian schools. The scholarship organization which helped fund Espinoza. Big Sky Scholarships received donations and then awarded scholarships to families who were experiencing financial difficulties. The scholarship organization paid private school tuition to the school chosen by the parents, like Espinoza.

However, the Montana Department of Revenue issued an administrative rule disallowing any grants to families using the funds to pay for education at religious schools. The reason for doing so was a provision of the Montana constitution [Article X, section 6(1)] which prohibited the use of public monies for any “sectarian purpose.”

Espinoza and two other mothers, with the Institute for Justice as counsel, joined in a lawsuit challenging the ruling in a state court. That court essentially ruled in the mothers’ favor. The Montana Department of Revenue then appealed to the Montana Supreme Court, which reversed the lower court’s decision and found that the state constitution barred scholarships for attendees of religious schools and, furthermore, invalidated the whole program. Espinoza appealed to the U.S. Supreme Court.

The Supreme Court now finds in a 5-4 decision — with Chief Justice John Roberts writing the majority opinion along with Justices Thomas, Alito, Gorsuch, and Kavanaugh — that the Montana Supreme Court’s invalidation of the Montana scholarship tax credit/scholarship program was unconstitutional. When first instituted, the legislation allowed parents to use scholarship grants for tuition payments to religious schools. Withdrawing that opportunity violates the free exercise clause of the First Amendment, wrote Roberts.

The chief justice used language from an earlier case — Trinity Lutheran — to maintain that the free exercise clause of the Constitution “protects religious observers against unequal treatment.” That same clause, continued Roberts, makes unconstitutional any “laws that impose special disabilities on the basis of religious status.” The Trinity case had been decided three years earlier and involved a refusal by the state of Missouri to provide a state grant to resurface the Trinity Lutheran School’s playground, while offering grants to secular schools. Court watchers were not certain how widely the holding in that case would be applied. The court has given its answer. What it saw happening in the Montana case was that in order to qualify for aid under the Montana constitution, “a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges inevitably deters or discourages the exercise of First Amendment rights.”

The decision is a substantial victory for religious education and for parents who choose to make use of tax credits, vouchers, and scholarships offered to them by state governments while attending religious schools.

Roberts’ opinion also effectively ends the ability of state governments to discriminate against religious education under what are commonly referred to as “Blaine Amendments.” The unsavory history of these amendments is traceable to former Congressman James G. Blaine. In 1875, Blaine sought, though unsuccessfully, to pass a constitutional amendment preventing public monies from going to Catholic parochial schools. Despite the defeat of the amendment nationally, individual states promptly passed their own state constitutional amendments, dubbed “Blaine Amendments.” They became the anti-Catholic/anti-immigrant predecessors to the “no aid” provisions found in over 30 states such as Montana. Justice Roberts does not mince words in describing their history as “checkered,” “born in bigotry,” and passed at “a time of pervasive hostility to the Catholic church and to Catholics in general.”

Chief Justice Roberts also counters the assertion by the Montana Supreme Court that the Montana constitution’s no aid provision was that state’s way of "more fiercely" separating church and state. Roberts points out that the establishment clause of the U.S. Constitution already prevents the creation of government-mandated religion. The modest aid involved in this case, which comes from private donors, does not even come close to furthering of a tax-supported state or national church. Therefore, such fears by Montana do not warrant infringement of the free exercise of rights of Espinoza and others like her.

The drafters of the original Montana law creating the scholarship program intended it to be available to parents choosing religious schools as well as those who chose secular private schools. The court properly protects those constitutional rights in its decision.

Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College and a Fellow in the Institute for Faith and Freedom. He is a member of the state bar of Pennsylvania and a graduate of Grove City College and the University of Michigan Law School. Sparks writes regularly for the Institute on Supreme Court developments.