In January, the U.S. Supreme Court is set to hear a case that could result in states being required to use taxpayer money to fund religious education.
The case, Espinoza v. Montana Department of Revenue, asks whether Montana must provide tax credits for scholarships to private religious schools. With the addition of Justices Neil Gorsuch and Brett Kavanaugh to the Court, conservatives may finally have the Supreme Court that would give them what they want: a way to funnel taxpayer dollars into religious schools.
There are a number of ways that Christian schools have attempted to access public tax dollars over the years. In 2015, the Montana legislature created a scholarship program that provided up to $150 of tax credits for individuals who donate to private scholarship organizations. Those private scholarship organizations, in turn, only fund private schools—which in Montana are overwhelmingly religious. The Montana Department of Revenue realized that this would amount to taxpayer aid to religious schools and issued a rule saying sectarian schools couldn’t receive any funds from those private scholarship organizations.
The Montana Supreme Court agreed with the Department of Revenue, holding that when the legislature enacted a statute that “provides a dollar-for-dollar credit against taxes owed to the state” the legislature was essentially providing aid to religious schools in violation of the Montana Constitution. With that, the tax credit program was scrapped. The plaintiffs—parents who wanted to receive state money in return for donating money toward a private school education—asked the Supreme Court to hear the case, and it agreed.
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Such a clear violation of the separation between church and state shouldn’t warrant the Supreme Court agreeing to hear the case. Indeed, it doesn’t bode well at all that it did.
First, if Montana can be forced to provide aid to religious schools, nearly any state can. Many states bar taking money from the public treasury to fund sectarian schools. However, Montana’s constitution goes further: It prohibits “any direct or indirect appropriation or payment from any public fund or monies” going to any school controlled by a church. That would include things like tax credits. By passing the law back in 2015, the Montana legislature declared that it was fine for the state to take a hit to its tax coffers and help direct that money to religious schools instead.
Next, the U.S. Supreme Court rarely hears cases where a state supreme court rested its decision on state law grounds. That’s because the Supreme Court—part of the federal government—generally doesn’t interfere in the workings of the state court decisions about state laws. In this case, the Montana Supreme Court decided the matter in large part based on that Montana Constitution provision, and the inquiry could have stopped there.
But this Court, thanks to the recent additions of Justices Gorsuch and Kavanaugh, is primed to hear a case about taxpayer funding of religious education. Kavanaugh is a staunch and vocal backer of vouchers and spending tax dollars on religious activities. He even wants public money to be used for things like school-sponsored prayer. Gorsuch, meanwhile, has already weighed in on a religious funding case, Trinity Lutheran Church v. Comer. There, he wrote a concurrence that made clear he reads the First Amendment in a way that would allow for public funding of parochial schools.
In fact, the Montana case is the natural extension of Trinity Lutheran, in which the Supreme Court held that in some instances, the government can be forced to give money to religious institutions. Although Trinity Lutheran related only to a church’s participation in a state-funded environmental program, the decision almost immediately led to the New Mexico Supreme Court holding that religious schools were entitled to the loan of state-funded textbooks. A favorable decision in Espinoza, however, opens the door to much more direct taxpayer funding of religious schools: Money that would normally go to a state in the form of taxes paid would instead go to a religious school via tax credits.
Depending on the result of the Espinoza case, conservatives have a number of lawsuits waiting in the wings to continue to push the envelope on state funding of religious education.
In Maryland, a Christian school, Bethel Christian Academy, had a statement of nondiscrimination that deliberately excluded gender identity and sexual orientation. The school’s handbook also said the school “supports the biblical view of marriage defined as a covenant between one man and one woman, and that God immutably bestows gender upon each person at birth as male or female to reflect his image … faculty, staff, and student conduct is expected to align with this view.” This conservative religious belief flies directly in the face of Maryland’s laws, which protect against discrimination based on gender identity and sexual orientation.
Nevertheless, Bethel sought to participate in a state program that offered scholarships to private schools for low-income students. Maryland removed Bethel from the program because their religiously driven views on gender identity, same-sex marriage, and sexual orientation did not conform to Maryland’s laws. After the school was removed from the program, several students withdrew. The school sued the state, alleging it had violated the Free Exercise Clause of the First Amendment when it didn’t continue to fund religious schools such as Bethel. Earlier this month, a federal district court in Maryland allowed the case to move forward.
More cases are in the pipeline, and in some states, the state has already given in to the push by religious conservatives. In Washington, conservative groups are trying to force the state to allow taxpayer-funded work-study money to be paid to religious employers. Last year, after the school sued, the state changed its laws to allow students to work for sectarian groups and receive state money.
In Maine, a group of parents who want the state to pay for their children to attend religious schools sued over their exclusion from a school choice program. The U.S. Department of Justice filed a friend-of-the-court brief supporting the parents. The current administration believes that the Trinity Lutheran case requires Maine to fund religious schools in the same way it funds non-religious ones. The DOJ also filed a friend-of-the-court brief in the Espinoza case and asked to help argue the case against Montana before the Supreme Court.
What these cases all have in common is that they seek to force states to fund, directly or indirectly, religious schools and entities. They seek to eradicate the barrier between church and state. This could result in tax dollars going to institutions that refuse to hire—or willfully fire—LGBTQ teachers. Indeed, it is easy to imagine Bethel, the Christian school that refuses to acknowledge Maryland’s LGBTQ anti-discrimination laws, doing just that.
And if conservatives prevail at the Supreme Court in the Espinoza case, that church-state barrier will continue to erode—and the most vulnerable students have the most to lose.