In a 5-4 decision this morning written by Chief Justice John Roberts in a case called Espinoza v. Montana Department of Revenue, the Supreme Court ruled that taxpayer funding could subsidize private religious education. In fact, if states offer funding for private schools at all, they may have to extend that offer to private religious schools, too. (It could depend on the kind of funding program the state offers.)
The wall of separation between church and state may exist, but it has been severely weakened.
I’ll get to what Roberts and the conservative justices said in a bit, but here’s the backstory for anyone who may not be aware of what the case is about or why this matters.
In 2015, the Montana legislature passed a bill giving a $150 income tax credit to residents who funded private school scholarships. If you gave the schools (or scholarship organizations that funded those schools) some money, the state would, in essence, reward you for it.
That may sound fine… until you realize most of those private schools — 70% of them in Montana — have a religious affiliation. So the government was really just rewarding people for giving money to a religious school even if the law was always meant to be secular. In fact, of the 13 schools that received scholarships from one funding organization called Big Sky, 12 were religious.
The money itself wasn’t a huge deal. It was the principle that mattered. Article X, Section 6 of Montana’s constitution explicitly forbids public money funding religious schools — it’s a provision that stems from the failed Blaine Amendment — yet this new scholarship program established a direct link between public money and religious schools.
The argument against this line of thinking was that tax credits weren’t really “public funds,” and the donations were ultimately helping students, not the religious schools. The money wasn’t used to promote a religious belief.
The defenses were weak. Because the government was effectively, albeit indirectly, subsidizing tuition at religious schools, they were making those schools more enticing for students. And of course those religious schools existed to propagate their religious beliefs. You couldn’t ignore that.
The Montana Supreme Court also saw through those pathetic arguments. In December of 2018, they voted 5-2 to strike down the 2015 law.
“The (tax credit) permits the Legislature to subsidize tuition payments at religiously-affiliated private schools,” Justice Laurie McKinnon wrote for the majority. “That type of government subsidy in aid of sectarian schools is precisely what the (constitutional) delegates intended (the constitution) to prohibit.”
That didn’t sit well with the supporters of the “money-laundering scheme,” as Americans United for Separation of Church and State phrased it. Those who liked the scholarship program argued that this tax credit was merely an extension of the U.S. Supreme Court’s Trinity Lutheran case in which the justices said religious institutions could be eligible for taxpayer-funded grants offered by the state as long as they were for a secular purpose. If the Montana law was secular, they said, why should people who want to donate to religious private schools not be eligible for the tax benefits?
Americans United said the answer was simple: They weren’t making a donation that went for a secular purpose: The “religious schools in Montana require students to take religious classes that indoctrinate the students in the schools’ faiths.” (Unlike Trinity, the money wasn’t going toward something “neutral” like a new playground.)
On the flip side, plaintiffs like Kendra Espinoza said that, without the tax credit, her daughters couldn’t get a scholarship to a private school: “The court’s ruling discriminates against religious families and every Montana child who is counting on these scholarships.”
That was a lie. Of course her kids could get a scholarship. Religious schools could continue to offer them and donors could always fund them. Those donors just shouldn’t be getting a reward from the government for doing so — that’s what this case was about.
The Supreme Court’s job was to decide if the Montana Supreme Court violated the U.S. Constitution by blocking a neutral-on-the-surface program just because it benefitted religious schools. The conservatives claimed it was a form of religious discrimination, but remember that scrapping the whole program — which Montana did — was much different than preventing money from going specifically to religious schools.
The plaintiffs said it didn’t matter that the scholarship program was scrapped in its entirety; they wanted the Supreme Court to overturn the entire “no-aid” clause in Montana’s Constitution because they saw it as discriminatory.
As Rob Boston of Americans United put it last summer, “the fate of public education and church-state separation may hang in the balance.”
A coalition of atheist groups including the Freedom From Religion Foundation, Center for Inquiry, American Atheists, and the American Humanist Association filed a brief explaining why the Montana Supreme Court’s ruling should be affirmed rather than rejected. Another coalition that included the ACLU, Americans United, and Interfaith Alliance filed their own brief saying the same thing. You can read a number of other amicus briefs, for and against the Montana court’s decision, right here.
The atheists’ brief basically argued that Montana was right to strike down the voucher program because it violated the state constitution. It also said the principle behind those “No Aid Clauses” — which is that public money shouldn’t fund private religion — has been around since the nation’s founding and we don’t want the government undermining that. By letting taxpayer money benefit religious schools, the government was essentially regulating religious schools. In other words, they shouldn’t want this either!
Montana’s neo-voucher program violated the religious freedom of every Montana citizen. The Montana Supreme Court righted this wrong. Citizens of every religion and of no religion were coerced into subsidizing religious education with which they fundamentally disagree. This is, as Jefferson wrote, “sinful and tyrannical.” This Court should allow Montana’s decision not to subsidize private education to stand. The Montana Constitution prohibits this use in simple, straightforward terms, and this interpretation is consistent with fundamental principles of religious liberty and the First Amendment.
… Let the faithful voluntarily support their faith and their religious schools. To involve the state in such decisions violates the religious liberty of all.
The other church/state separation groups argued that the Trinity Lutheran case didn’t open the door to overturning the Montana court’s ruling, letting the decision stand wouldn’t hurt anybody, and that (again) it was longstanding tradition to block public financing of religious education. Overturning the decision would violate the Supreme Court’s own stated desire to respect precedent.
What is more, it would be especially inappropriate here for the Court to abandon its many decades of decisions that have rejected arguments for a right to funding of religious education on an equal basis with private secular education, because the Montana Supreme Court’s decision — which struck down the entire program at issue — does not result in any discrimination between religious and secular private education. Indeed, because the decision below has no discriminatory effect, the Court should consider dismissing the petition as improvidently granted.
The Religious Right called this a case of religious discrimination, but of course, that was never true. There was no discrimination anymore because there was no scholarship tax credit at all. And laws respecting church/state separation have a long, respected, history in our country.
Which brings us to today’s decision from Justice Roberts, which was convoluted enough that it invoked three separate concurrences and three separate dissents.
Roberts essentially said the Montana Supreme Court was wrong to shut down the scholarship program simply because any of the schools in question were religious. Shutting religious schools out of the program entirely was the issue; he didn’t get into the proselytizing within those schools.
Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.
…
To be eligible for government 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.
What about the argument that keeping public funding out of private schools is a good idea? Roberts got more specific:
A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.
That’s the crux of the case. That’s the statement everyone’s quoting.
Ultimately, Roberts said the Montana Supreme Court should never have overturned the scholarship program for the reasons they did:
When the [Montana Supreme] Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. Had the Court recognized that this was, indeed, “one of those cases” in which application of the no-aid provision “would violate the Free Exercise Clause”… the Court would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program.
Roberts reversed the decision of the Montana Supreme Court and sent the case back “for further proceedings” that can’t contradict his opinion. But what happens now is still up in the air. More on that in a moment.
Justice Neil Gorsuch summed up the result in his concurrence more succinctly:
Effectively, the court told the state legislature and parents of Montana like Ms. Espinoza: You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public benefit discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.
And Justice Clarence Thomas used his concurrence to dismiss church/state separation completely:
… the modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect.
In dissent, Justice Ruth Bader Ginsburg said there was no discrimination in play here and the Supreme Court had no reason to even bother with this case:
Nearing the end of its opinion, the Court writes: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious”… Because Montana’s Supreme Court did not make such a decision — its judgment put all private school parents in the same boat — this Court had no occasion to address the matter. On that sole ground, and reaching no other issue, I dissent from the Court’s judgment.
In his own dissent, Justice Stephen Breyer said Roberts’ ruling risked “the kind of entanglement and conflict that the Religion Clauses are intended to prevent.”
Justice Sonia Sotomayor was even more blunt:
Not only is the Court wrong to decide this case at all, it decides it wrongly.
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Today’s ruling is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.
She also noted that it’s not clear what Montana should do now:
… it is hard to tell what this Court wishes the state court to do. There is no program from which petitioners are currently “exclu[ded],” so must the Montana Supreme Court order the State to recreate one? Has this Court just announced its authority to require a state court to order a state legislature to fund religious exercise, overruling centuries of contrary precedent and historical practice?…
Indeed, it appears that the Court has declared that once Montana created a tax subsidy, it forfeited the right to eliminate it if doing so would harm religion. This is a remarkable result, all the more so because the Court strains to reach it.
That last bit seems to be the most telling. What exactly does the Supreme Court want states to do? Roberts says if there’s a program that benefits private schools at all, it can’t exclude private religious schools either, which means certain kinds of taxpayer funding may now go to religious schools. But how broad is that principle?
That said, similar “baby Blaine” provisions in other states appear to be safe as long as they’re not singling out religious institutions in otherwise neutral laws. Montana’s no-aid provision is still in effect.
About 30 states offer tax credits or vouchers to private schools. It seems they will now have to fund religious schools, too. The fix would be difficult but there is a solution: State legislatures should stop offering vouchers, period. Better to support public schools than allow for taxpayer funding to be siphoned away to private or parochial schools.
Normally, within minutes of a Supreme Court decision of this nature, I get inundated with statements from religious and non-religious groups. They were mostly silent today at first, suggesting that even their experts weren’t exactly sure what the hell today’s decision really means. They know it’s bad, but the extent of how bad it is isn’t clear. (Even news reports about the decision weren’t specific about the implications.)
In any case, here’s what they eventually said.
The Center For Inquiry:
“This Court has been opening a hole up in Thomas Jefferson’s Wall of Separation between church and state,” said Nick Little, Vice President and Legal Director of the Center for Inquiry, an organization that advances reason, science, and secularism. “Now they’ve built a two-lane highway through that hole, inviting churches to raid the public treasury and drive gleefully away with taxpayer money.”
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“Let’s be clear about what just happened: The Supreme Court has decided that atheist taxpayers are now required to fund religious schools,” said Robyn Blumner, CFI’s President and CEO. “Members of non-Christian faiths are now required to fund Christian education. The religious right has gotten exactly what it wanted from Trump’s justices: the erasure of a fundamental principle of American law, that no person shall be forced to participate in religious expression by subsidizing religious education.”
“This ruling sets us on a dark, theocratic path,” continued Nick Little. “The Founders made clear that the public purse must not fund religious activities, especially education. Now, with this ruling, it not only can fund them, but it is compelled to.”
“For all their talk of originalism, the Religious Right activist Justices have erased centuries of legal precedent and undermined a central principle of religious freedom because of their bias in favor of funding Christian schools,” added [Alison Gill, Vice President for Legal and Policy]. “The ripple effects will be disastrous. Religious schools and programs will now have unbridled access to taxpayer dollars, devastating our system of public education.”
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“Religious extremists have eyed no-aid clauses for years, knowing they served as the remaining barrier to redirect taxpayer dollars to religious education,” said [President] Nick Fish. “This is a sad day for public education in America. While our public schools are desperately underfunded and scrambling for resources, it’s unconscionable that the Supreme Court is giving a taxpayer-funded handout to religious schools that are free to discriminate against their students and their staff.”
The American Humanist Association:
AHA Legal Director and Senior Counsel Monica Miller reacted to the news of the decision: “The constitutionally protected right to free exercise can only truly be observed when the government has no part in the funding or oversight of religious institutions. It is unsettling to see state-funded religious institutions further codified with today’s ruling.”
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Roy Speckhardt, AHA Executive Director, criticized the ruling: “It is an unequivocal loss that our government can now force taxpayers to fund private religious schools and missions — unfairly benefitting religious students and funding some institutions that offer a free pass to the religious right to discriminate.”
Americans United for Separation of Church and State President and CEO Rachel Laser:
Forcing taxpayers to pay for private religious education — as Montana’s tax-credit voucher program does — is a fundamental violation of their religious freedom. Because religious schools are the epicenter of religious influence on the next generation, it’s imperative that the members of the faith support those schools, not the taxpayers at large.
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… Now that the Supreme Court has ruled that taxpayer-funded vouchers must fund private religious schools if they fund secular private schools, it is more important than ever that we fight to oppose all private school voucher programs. Public dollars should fund public schools, which educate 90% of our nation’s students.
The Freedom From Religion Foundation:
“The ruling eviscerates a founding principle of our secular republic — that citizens must not be taxed to support religion, including religious schools,” comments FFRF Co-President Annie Laurie Gaylor. She adds that the ruling would appear to severely undercut specific safeguards in state constitutions prohibiting the union of state and church.
The Secular Coalition for America‘s Director of Policy & Government Affairs Casey Brinck:
This decision flies in the face of precedent and should deeply concern any American who believes in our Constitution and the rock solid clause contained within it regarding the separation of church and state. The Court has opened the door for the religious right, and other nefarious religious groups, lauding their attempts to secure state funding to subsidize their spiritual practices — a truly un-American act by our nation’s highest court that treats every nonbeliever in our country like a second-class citizen.
Caroline Mala Corbin, a Professor of Law at the University of Miami who has written extensively on church/state separation, put it to me bluntly: “This is the death knell of the Establishment Clause.” Since the core principle of that First Amendment provision is that the government should not be funding religion, this ruling dismantles that sound idea.
In effect, she said, this is the first time the Court has said a government must give taxpayer funding to religious organizations which can then use that money to proselytize. Rejecting that funding under the belief that church and state must be separate is no longer valid.
Let’s also recognize that this decision is a victory for Christianity specifically. (After all, it’s not like Montana is full of private Islamic schools.) The Supreme Court just opened the door for one religion to benefit from taxpayer funding far more than any other.
We can also expect a number of legal challenges to no-aid provisions in states across the country.
It’s an awful decision. Whatever open questions there are about the implications, none of them lean in favor of more church/state separation. We need a better Court. Our democracy depends on it.
(Image via Shutterstock. Large portions of this article were published earlier)