High Court Strikes Down Ban on Taxpayer Funding for Religious Schools

June 30, 2020 by Dan McCue
U.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON – The Supreme Court struck down a ban on taxpayer funding for religious schools on Tuesday, saying such institutions can’t be prevented from participating in programs that use public funds to support private education.

The 5-4 ruling upheld a Montana scholarship program that allows state tax credits for private schooling in which almost all the recipients attend religious schools.

The Montana Supreme Court had struck down the K-12 private education scholarship program that was created by the Legislature in 2015 to make donors eligible for up to $150 in state tax credits.

The state court ruled that the tax credit violated the Montana constitution’s ban on state aid to religious schools.

But Chief Justice John Roberts, who wrote the opinion for the majority, said the state ruling itself ran afoul of the religious freedom of parents who want the scholarships to help pay for their children’s private education.

“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,” Roberts wrote.

In a separate concurring opinion, Justice Samuel Alito pointed to evidence of anti-Catholic bigotry that he said motivated the original adoption of the Montana provision and others like it in the 1800s, although Montana’s constitution was redone in 1972 with the provision intact.

Justice Brett Kavanaugh, whose two daughters attend Catholic schools, made a similar point during arguments in January when he talked about the “grotesque religious bigotry” against Catholics that underlay the amendment.

Advocates for allowing state money to be used in private schooling said the court recognized in its decision that parents should not be penalized for sending their children to schools that are a better fit than the public schools.

“This opinion will pave the way for more states to pass school choice programs that allow parents to choose a school that best meets their child’s individual needs, regardless of whether those schools are religious or nonreligious,” said Erica Smith, a senior attorney with the Institute for Justice, which represented the parents in their court fight

But the ruling appeared to infuriate Justice Sonia Sotomayor, who called it “perverse.”

“Without any need or power to do so, the Court appears to require a state to reinstate a tax-credit program that the Constitution did not demand in the first place,” she said.

In a dissenting opinion, Justice Ruth Bader Ginsburg argued that there was no constitutional violation because the program ended up being shut down entirely, leaving families from all schools in the same position.

In a third dissent, Justice Stephen Breyer — joined by Justice Elena Kagan — argued that while Montana’s aid program’s inclusion of religious schools may not have been forbidden by the First Amendment’s Establishment Clause, it was not required by the Free Exercise Clause as Roberts’ claimed it was.

It is estimated as many as 36 states have similar no-aid provisions in their constitutions. Courts in some states have relied on those provisions to strike down religious-school funding.

Among those supporting the parents’ Supreme Court appeal was the Trump administration.

Attorney General William Barr praised the ruling as “an important victory for religious liberty and religious equality in the United States.” 

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