Supreme Court considers potentially major church-state case

Holly Hollman, general counsel for the Baptist Joint Committee for Religious Liberty, speaks to reporters outside the U.S. Supreme Court building. The court heard oral arguments Jan.. 22 on a case prompted by a Montana program that offered tax credits to people who funded scholarships in private schools. including religious schools. (BJC Photo)

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WASHINGTON—The U.S. Supreme Court heard oral arguments Jan. 22 on a case prompted by a Montana program that offered tax credits to people who funded scholarships in private schools—including religious schools.

The Montana Supreme Court ruled the program violated a provision in the state’s constitution that bars government financial aid—direct or indirect—to religious schools.

Kendra Espinoza, whose children attend Stillwater Christian School in Kalispell, Mont., and who would have benefited from the dollar-for-dollar tax-credit program, challenged that prohibition.



“I feel that we are being excluded simply because we are people of religious background or because our children want to go to a religious school,” Espinoza told reporters on the steps of the Supreme Court.

The Southern Baptist Convention’s Ethics & Religious Liberty Commission and the Baptist Joint Committee for Religious Liberty have taken opposing views on the case, Espinoza v. Montana Department of Revenue.

Call for neutrality

Kendra Espinoza, lead plaintiff in a church-state case being considered by the U.S. Supreme Court, responds to questions from reporters. (BJC Photo)

The ERLC joined the Christian Legal Society, the U.S. Conference of Catholic Bishops, the National Association of Evangelicals and 13 other organizations in a friend-of-the-court brief filed Sept. 18 urging that the Montana Supreme Court decision be reversed.



The brief argues that when a tax-credit program benefits both religious and non-religious schools on neutral terms, any legal rule that excludes religious beneficiaries unfairly discriminates against them. It claims such exclusion violates principles of government neutrality and private choices in matters of religion.

“The fact that religious schools ultimately benefit from families’ and donors’ exercise of choice cannot justify application of a provision that singles out religious choices for exclusion,” the brief states.

Protect religious schools from government intrusion

On the other hand, the BJC argued in its friend-of-the-court brief that prohibitions on public funding for religious institutions—including schools—“protect the distinctiveness of religion and promote values that advance religious freedom.”


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“The no-funding principle is historically and practically related to limits on government interference in religion and public accountability for public resources,” the brief states.

The brief emphasized the distinctive legal treatment of religion protects religious liberty by keeping the government from interfering in its beliefs and practices, including the spiritual formation of students in religious schools.

“Petitioners’ demand for a state program for equal funding ignores the distinctiveness of religion and the various ways religious education operates to promote faith formation. It ignores the relationship between support and accountability in public programs and the limits on governmental interference in religion,” the brief states.



The BJC brief—joined by the Evangelical Lutheran Church in America, the General Synod of the United Church of Christ and the stated clerk of the General Assembly of the Presbyterian Church (U.S.A.)—urged the Supreme Court to affirm the Montana court’s ruling.

‘Neither surprising nor discriminatory’

“States should not have to fund religious schools. Religion is treated in a unique way in constitutional law, both to avoid its establishment by government and to avoid government interference in its free exercise. This special treatment of religion stems from our country’s deep and abiding commitment to religious liberty for all,” Holly Hollman, BJC general counsel said.

Holly Hollman

“The Supreme Court has long recognized that government may not directly fund religious exercise. So it is neither surprising nor discriminatory that Montana’s constitution, like those in other states, protects religious liberty by avoiding even the indirect funding of religion. No-aid provisions ensure that state funds are preserved for state purposes and not used to advance religion.



“The court should reject blanket attacks on no-aid provisions and uphold Montana’s law that preserves public funding for its public schools.”

At least three dozen other states have provisions similar to the one in Montana that prohibits state aid to fund religious education.

Rooted  in anti-Catholic bigotry?

In a friend-of-the-court brief, the U.S. Department of Justice claims the prohibitions grew out of a failed amendment to the U.S. Constitution that Congressman James G. Blaine proposed in 1875. The brief asserts the state prohibitions were adopted “during an era of widespread hostility to Catholicism in general and to Catholic schools in particular.”

The BJC brief rejects that assertion, saying it “misrepresents a long tradition of noninterference with religion” dating back more than two centuries, and it insists there is no evidence the Montana constitutional provision was “enacted out of religious animus.” It notes 19 of the 38 no-funding provisions in states predated the Blaine Amendment.

“The origins of the no-funding principles predate not only the Blaine Amendment but also the advent of significant Catholic immigration in the 1840s,” the BJC brief states.

In a separate friend-of-the-court brief, Americans United for Separation of Church and State similarly emphasized state prohibitions on public funding of religious education are designed to protect the independence of religious groups from government interference.

“The founders believed that it was critical to protect individuals’ freedom of conscience against the coercive extraction of tax funds to support religion,” the brief states.

Texas Impact—an interfaith public policy network—joined Americans United and more than a dozen other religious and civil liberties groups in filing the brief.


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