Supreme Court’s conservative justices show support for religious schools in landmark Montana case
WASHINGTON – The Supreme Court’s conservative majority decried discrimination against religious schools Wednesday in a case that could upend bans in many states against funding religious education.
While the high court’s eventual decision in the school choice case remained in doubt, Chief Justice John Roberts and his conservative colleagues voiced concern with dozens of state constitutional amendments that block religious schools from receiving tax dollars.
“They’re certainly rooted in grotesque religious bigotry against Catholics,” Associate Justice Brett Kavanaugh said in reference to 19th-century provisions in 37 states, including Montana, where parents of children attending religious schools are fighting to receive scholarships funded by tax credits.
Roberts, who appeared to be the swing vote in the case as in so many others, compared the parents’ plight to racial discrimination.
“How is that different from religion, which is also protected under the First Amendment?” Roberts asked Adam Unikowsky, the state’s lawyer.
But the high court’s four liberal justices defended the prior ruling of the Montana Supreme Court, which struck down the entire scholarship program – even for secular private schools – to keep the state from funding religious schools, even indirectly.
“There is no discrimination at this point going on, is there?” Associate Justice Elena Kagan asked Richard Komer, the lawyer representing Kendra Espinoza and other parents who want the scholarships for their children’s religious school education. Secular and religious schools “are both being treated the same way.”
Small aid, big stakes
What Espinoza, the other parents and the state are fighting over may seem small: a discontinued state program that offered $150 tax credits to help spur $500 tuition scholarships. But the stakes are high for both sides in the national debate over public aid for religious schools.
Conservative groups have flooded the high court with arguments supporting the Montana parents’ cause. Having long sought legislative backing for voucher and tax credit programs, they see the case as a judicial promised land.
On the other side are teachers unions and civil rights groups worried that if the floodgates open for religious school funding, public schools will suffer. A ruling for the religious school parents, they say, would violate the Constitution’s principle of separation of church and state.
What’s not in dispute is the potential impact of the high court’s ruling. Among the 37 states that have constitutional prohibitions against state funding of religious schools, 17 specifically block school choice programs. Nationwide, tax credits and vouchers help about 500,000 students attend religious schools.
The Trump administration sided with Espinoza and the other Montana parents. President Donald Trump has long championed prayer in schools and expanded religious freedom.
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Jeffrey Wall, the Justice Department’s principal deputy solicitor general, likened the case to a Supreme Court ruling in 2017 that made a Missouri church eligible for state playground resurfacing aid.
“That rule applies equally to schools as to playgrounds,” Wall said.
When the Montana Supreme Court ruled the program in violation of the state’s constitution in 2018, officials shut down the entire program rather than exclude only religious schools. That, state officials say, should end the challenge.
What’s more, several justices questioned whether the challenging parents have the right to bring the case, since money from the tax credit program winds up with the schools.
“We don’t have a school in this case,” Roberts said.
Justices get religion
The Supreme Court under Roberts has looked kindly on religion.
The court has upheld public prayer at government meetings and exempted religious objectors from laws regarding contraception and prohibiting discrimination against same-sex marriages. It has upheld a Muslim man’s right to keep his beard in prison and a Muslim teen’s right to wear a hijab at work.
Last year, it ruled 7-2 that a mammoth Latin cross on government land in Bladensburg, Maryland, does not have to be moved or altered in the name of church-state separation.
And in the 2017 case, the justices ruled 7-2 that a Lutheran church in Missouri was eligible for public funds to resurface its playground, just like other applicants. Roberts called the state’s exclusion of the church “odious to our Constitution.”
That ruling opened the door to the current challenge, religious conservatives claim, even though Roberts added in a footnote, “We do not address religious uses of funding or other forms of discrimination.”
Civil rights groups and teachers unions opposed to the use of tax dollars for religious purposes point to a different 7-2 decision from the high court in 2004. Then, the justices upheld a public scholarship program that excluded students pursuing theology degrees.
A ruling in favor of religious school choice would be a game-changer, and the court may be poised to deliver it. Kavanaugh, the newest associate justice, is a devout Catholic, leaving the court with five Catholics and three Jews. Associate Justice Neil Gorsuch was raised Catholic but attends an Episcopal church.
