Last week, the Supreme Court agreed to hear yet another important religious liberty case, Espinoza v. Montana. In this case, the state of Montana excluded religious schools from a scholarship program because of the state’s Blaine Amendment — basically an anti-religion law. The question at the heart of the case is whether or not such an exclusion violates the First Amendment’s protections for religious freedom. In other words, is it unconstitutional for the government to deny benefits to families and institutions because they’re religious?

That’s what Montana is doing.

In 2015, the state legislature passed the Montana Tax Credit Scholarship Program, which allows Montana citizens a tax credit for $150 of their contributions to a privately run scholarship program. However, the Montana Department of Revenue refused to extend the program to include kids attending religious schools, citing the state’s Blaine Amendment, an archaic anti-religious law that forbids tax credits going to schools owned or operated by a “church, sect, or denomination.” Thus, children in Montana were stripped of their right to participate in a scholarship program simply because they attend religious schools.

This seems unconstitutional, given the Supreme Court’s June 2017 decision in Trinity Lutheran v. Comer that ruled on narrow grounds that religious groups cannot be barred from participation in widely available public programs simply because they are religious.

Becket Fund for Religious Liberty attorney Eric Baxter pointed out that when the Supreme Court dealt with Trinity Lutheran, however, it was a narrow decision, and the case’s ruling was largely constrained to one particular type of government benefit: playground safety equipment.

Some lower courts view this precedent’s narrowness as a license to ignore its broader nondiscrimination principle in cases involving different types of government benefits. This is exactly what the Montana Supreme Court did in this case when they ruled against religious liberty. Baxter tweeted :

Raising the stakes for religious liberty is why the Montana Supreme Court ruled that religious schools had to be excluded—because of a provision of Montana’s Constitution called a #BlaineAmendment. — Eric Baxter (@esbax) June 28, 2019

Supreme Court justices “have repeatedly recognized these laws’ unsavory origins, but they continue to be a tool for treating religious people as second-class citizens in govt programs.” The Montana case will be a fight between interpreting the Trinity Lutheran precedent and a blatantly discriminatory state law. Only time will tell if the Supreme Court will stand up for religious liberty and rule broadly on this matter once and for all.