The Supreme Court on Wednesday signaled it may be ready to rule that states offering scholarships or subsidies to private schools must also extend taxpayer funds to students in schools operated by churches.
The court’s conservatives, including Chief Justice John G. Roberts Jr., said excluding private schools because they are religious amounts to unconstitutional discrimination similar to racial bias.
What it means
Richard Komer, a lawyer with the Institute for Justice, which represents the plaintiffs, said the question for the justices was straightforward. “This case asks whether the federal Constitution allows the wholesale exclusion of religious schools from scholarship programs,” he said. “It does not.”
Many state constitutions include restrictions on government aid to religious groups. The provisions, often called Blaine amendments, were initially adopted in the 19th century and often had the goal of restricting funding for Catholic schools.
The arguments
Roberts opened the argument just after 10 a.m.
He asked several questions during the argument and, at one point, said discrimination based on race or religion is nearly always unconstitutional.
Justice Samuel A. Alito Jr. noted that states “do not have to fund 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.”
Justice Brett M. Kavanaugh agreed: “Why isn’t this excluding religious people, telling them that they’re not entitled to equal treatment under the Constitution, a straight violation of the principle” that discrimination is wrong? He cited a 2017 opinion written by the chief justice that said Missouri engaged in “odious discrimination” when it refused a day care school’s grant for a new playground because it was affiliated with the Lutheran church.
Washington lawyer Adam Unikowsky, defending Montana, said no-aid-to-church-schools “does not prohibit anyone’s free exercise of religion. … We’re not defending religious bigotry here,” he added.
Kavanaugh objected. Most states adopted their bans on funding church schools in the late 19th century. “They’re certainly rooted in grotesque religious bigotry against Catholics,” he said.
The four liberal justices disagreed throughout the hour.
Justice Sonia Sotomayor said the court was on the verge of a “radical” change in the law. Through most of American history, the Constitution has been seen as requiring a “separation of church and state,” which included no public funding for churches or religious teaching.
At one point, Justice Stephen Breyer wondered aloud whether a high court ruling for the Montana parents could be read as requiring public funding for Catholic schools. He noted that many cities and states now fund “charter schools” but not religious schools.
Background on the case
The arguments came in the case of Espinoza v. Montana Department of Revenue, No. 18-1195.
In 37 states, including Montana, the state constitution forbids sending tax money to churches or church schools. Based on that provision, the Montana Supreme Court struck down a 2015 state law that gave tax credits to people who donated money to scholarship funds that in turn gave small grants to children who attended private schools. Most of those schools were religious.
The Virginia-based Institute for Justice appealed on behalf of Kendra Espinoza and several other parents of students at Stillwater Christian School, in Kalispell, Montana.
They argued that the state’s exclusion of church schools violated the First Amendment’s protection for the “free exercise” of religion and the 14th Amendment’s guarantee of equal protection of the laws.
“A state cannot discriminate on the basis of religion,” said Richard D. Komer, attorney for the institute.
The Trump administration joined the case on the side of the parents seeking scholarships for the religious schools.
What’s notable
The case before the high court includes a curious element that several justices focused on. The Montana Supreme Court struck down the entire program, and so it was not obvious that it discriminated against religious groups.
“I am having trouble seeing where the harm in this case is at this point,” Justice Elena Kagan said. “There is no discrimination at this point going on.”
But Jeffrey Wall, a lawyer for the federal government arguing in favor of the scholarship program, said the Montana Supreme Court had violated the U.S. Constitution in striking down the program. It should not matter, he said, that the parents of students attending secular private schools had suffered “collateral damage.”
Previously
In 2017, in Trinity Lutheran Church v. Comer, the Supreme Court ruled that Missouri had violated the First Amendment by barring religious institutions from a state program to make playgrounds safer, even though the state’s constitution called for strict separation of church and state.
“The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution,” Roberts wrote for the majority.
At the same time, writing for four justices, Roberts emphasized the narrowness of the court’s decision. “This case involves express discrimination based on religious identity with respect to playground resurfacing,” he wrote. “We do not address religious uses of funding or other forms of discrimination.”
Wall said the Trinity Lutheran decision should require the court to sustain the Montana program. Kagan responded that the two cases presented different issues.
Noting that she had been in the majority in Trinity Lutheran, Kagan said it was one thing to exclude religious institutions from “a completely secular public benefit” and another “to subsidize religious education.”
What could happen
Only a handful of states provide tax funds to send children to religious schools, but the institute expects more states will do so if the Supreme Court rules for the Montana parents.
— Reporting by Adam Liptak of The New York Times was used to supplement this story. Compiled by ArLuther Lee, The Atlanta Journal-Constitution.
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