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Supreme Court: Montana Can't Exclude Religious Schools...

Andrew Harnik

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The U.S. Supreme Court ruled that Montana's exclusion of religious schools from a state scholarship program funded by tax credits violates the U.S. Constitution.

The 5-4 decision, in which Chief Justice John Roberts joined the court's other conservatives, is a victory for parents who wanted to use the state tax credit to help send children to religious schools.

The decision was a victory for conservative religious groups and advocates of school choice who challenged Montana's "no-aid" provision in the state constitution.

The case began in 2015 when the Montana Legislature passed a bill providing a dollar-for-dollar tax credit for individuals who donate to organizations that provide scholarship money to students in private schools. An organization called Big Sky began raising money to fund these scholarships, using the tax credit as an incentive. Of the 13 schools that got scholarship money from Big Sky, 12 were religious schools. Indeed, 70 percent of all private schools in Montana are religiously affiliated.

Ultimately, the Montana Supreme Court struck down the entire tax credit program for all private schools, religious and nonreligious alike. It said the tax credit conflicted with the state constitution, which bars all state aid for religious education, whether direct or indirect, including tax subsidies like this one.

School-choice advocates then sought to revive the scholarship program, appealing to the U.S. Supreme Court, backed by the Trump administration, including Education Secretary Betsy DeVos, who as a private citizen and as a Cabinet member has advocated for what she calls "faith-based education."

Baby Blaine Amendments

The lead plaintiff is the case was Kendra Espinoza, who has two daughters attending the Stillwater Christian School in Kalispell, Mont. She is an office manager and staff accountant who works extra jobs to pay for her children's tuition.

"I wanted my kids to have a really strong sense of right and wrong from a biblical perspective," Espinoza said of her decision to send her children to a religious school. "I want them to understand that our sense of ethics and our morals come from God's word, not just man's ideas."

At the heart of Tuesday's case are what opponents of these "no-aid" provisions call "baby Blaine Amendments," named after James G. Blaine, who introduced a similar amendment to the federal Constitution in Congress in 1875. While the original Blaine Amendment failed to pass, variations of it were adopted in most states. Many scholars today view the adoption of these amendments, mostly in the late 1800s, as a bigoted reaction to the mass immigration of Catholics into the U.S.

The state constitution

While the original no-aid provision was enacted in Montana in the 1880s, the current state constitution is no relic of the past. It was completely rewritten in 1972.

Indeed, almost all surviving delegates to the state constitutional convention submitted a brief in this case discussing how the "no-aid" provision was debated and enacted when the constitution was rewritten 48 years ago.

"There was clearly some interest being expressed on behalf of the parochial schools to open up the no-aid provision," recalls Mae Nan Ellingson, one of the delegates. She says a daylong hearing was held, with some 100 witnesses presenting written and oral testimony, followed by an extensive debate on the no-aid provision.

Ellingson notes that "a number of ministers" who were convention delegates "spoke very ardently in favor of public funds not going to religious education." And she says that ultimately the convention adopted the "no-aid" amendment in part "to protect religious liberty" and to prevent the state from attaching conditions to its aid.

In the end, the 1972 constitutional redo passed by a vote of 80-17. During the ratification campaign that followed, Ellingson says, the "no-aid" provision was "never even a threshold issue." And she notes that the no-aid measure included a provision specifically allowing private religious schools to receive available federal funds through a state pass-through mechanism.

But in recent years, as the U.S. Supreme Court has grown more and more conservative, it has moved with increasing vigor away from the notion of a strict wall of separation between church and state and toward a greater accommodation of religion. It has, for instance, allowed states to provide vouchers to parents for use in both religious and nonreligious private schools. And several members of the conservative majority have viewed all the Blaine Amendments, whether they were enacted in the 1880s or in modern times, as evidence of discrimination against the free exercise of religion.

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