BREAKING NEWS: Supreme Court Rules Against Montana Ban on Funding Religious Schools

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The Supreme Court just released a 5-4 decision in the case of Espinoza V. Montana that struck down a provision in the state constitution banning public funds to religious schools.

The decision seems to be narrowly tailored to say that if a state provides aid to private schools, it can’t bar aid to religious schools. I will post expert opinions on this as soon as they are available.

The many rightwing groups arguing on behalf of the plaintiffs (Espinoza) said that the ban was rooted in 19th century anti-Catholic bigotry (Blaine amendments), but Montana’s ban was enacted in 1972.

The decision will be celebrated by DeVos and other conservatives but it is not the knockout blow they were hoping for. If states don’t fund any private schools, they don’t have to fund religious schools. Conservatives were hoping to tear down Jefferson’s “wall of separation between church and state.” That didn’t happen.

The Los Angeles Times reported, in a story titled “Religious Schools Are Entitled to State Grants Given to Other Private Schools, Supreme Court Rules”:

WASHINGTON — The Supreme Court ruled Tuesday that states may not exclude religious schools from tuition grants that support other private schools.
The justices, by a 5-4 vote, decided that denying grants to students in church schools amounts to unconstitutional discrimination against religion.

The decision is a victory for advocates of school choice, and a setback for those favoring strict interpretation of the principle of church and state separation.

Montana, like more than 30 other states, has a long-standing state constitutional provision that forbids spending tax money to support churches and their affiliates. On that basis, the state supreme court blocked a state-sponsored scholarship program that would give grants to parents sending their children to private and parochial schools.

The Wall Street Journal reported:

WASHINGTON—The Supreme Court struck down a Montana constitutional provision banning state aid to parochial schools, ruling that states cannot exclude religious institutions from programs benefiting nonsectarian private schools.

The program began in 2015 and provided up to $150 in tax credits for donations to scholarship funds that helped students attend private schools. State tax authorities determined that donations to religious schools didn’t qualify. Then Montana’s Supreme Court, citing a state constitutional ban on state aid to sectarian schools, struck down the whole program.

Some parents who sought to send their children to Stillwater Christian School in Kalispell, Mont., said they couldn’t afford the tuition without the program, and otherwise would have to rely on public schools.

In an appeal to the U.S Supreme Court, these challengers argued that the state constitution’s ban stems from a 19th century bias against Catholics and their parochial schools—and that the state constitution violated the federal Constitution by discriminating against church schools.

Many other states have similar restrictions, often called Blaine amendments after Rep. James Blaine (R., Maine), who unsuccessfully proposed a similar provision for the federal Constitution.

While anti-Catholic bias helped fuel the 19th century drive for Blaine amendments, Montana argued that its 1972 constitutional convention, which re-enacted the provision, had not been tainted by religious bigotry.

Conservative groups backing the Montana suit hoped it would pave the way for broader taxpayer subsidy of religious schools through vouchers and other programs, in the wake of the Supreme Court’s relaxation of the separation between church and state in recent years.

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