Publicly Subsidized Religious Instruction: The New Standard

On June 30, 2020, the Supreme Court released its decision in ESPINOZA ET AL. v. MONTANA DEPARTMENT OF REVENUE ET AL. The case has important implications for school choice, educational tax credits, and the separation of church and state.

US Supreme Court upholds religious liberty, forbids religious ...

A Brief Synopsis of the Case

In 2015, the Montana Legislature extended up to $150 in tax credits to any tax payer who donated to a student scholarship organization (aka Big Sky Scholarships). Families with financial hardships or children with handicaps could apply for a Big Sky Scholarship and designate a private school of choice to which Big Sky would directly send (publicly subsidized) funding. Thirteen private schools received funding and twelve of those were religious schools. Because the Montana constitution bars any “direct or indirect” aid to schools controlled in whole or in part by any church, sect, or denomination” the State Supreme Court invalidated the program.

In a 5-4 ruling, the Supreme Court of the United States overturned the State Supreme Court decision, ruling that the Montana Supreme Court discriminated against the parents and schools based on religion, in violation of the Free Exercise Clause of the 1st Amendment. According to Chief Justice Roberts, who wrote the majority decision, “a state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

Sweeping Implications

This case has sweeping implications; 29 states, the District of Columbia, and Puerto Rico provide educational tax credits or vouchers. Going forward, these states and any other state that provides an educational tax credit is compelled to subsidize religious schools— even if the state constitution expressly forbids it.

With this ruling, the conservatives on the Supreme Court have clearly signaled the future for the public funding of religious schools and, we should expect more rulings that further erode the separation of church and state.

Read the full decision here: https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf

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