Daniel Mach is Director of the ACLU Program on Freedom of Religion and Belief.

In Espinoza v. Montana Department of Revenue, the Supreme Court will address a question that would have been unthinkable even to ask until quite recently: Can a state be forced to underwrite religious education with taxpayer dollars? Although the court has previously allowed the government to adopt school-voucher programs that provide indirect government aid to religious schools, it has never suggested that the U.S. Constitution somehow requires doing so ― and certainly not in the face of state constitutional rules barring taxpayer funding of religious education. Yet that is essentially what the petitioners are seeking in Espinoza, the latest in a disturbing line of cases attacking the very foundations of the separation of church and state.

At issue in Espinoza is a voucher-type program in Montana designed to divert millions in government dollars to private schools, the overwhelming majority of which are religiously affiliated. The program, enacted in 2015, allows taxpayers to receive dollar-for-dollar tax credits for donations to Student Scholarship Organizations, which then award scholarships to students attending private elementary and secondary schools. In other words, if a taxpayer owes the state, say, $100 in taxes, she can decide instead to send that money directly to an SSO, which will then spend it on private-school scholarships. In practice, the tax-credit program has served its unmistakable goal of funneling government dollars to religious education: The only SSO operating in the state supports 13 private schools, 12 of which are religiously affiliated, and over 94 percent of program scholarships have gone to finance religious education.

Such religious funding, even though indirect, violates the Montana constitution, which includes heightened protections against government-funded religion. The state constitution’s “no-aid provision,” adopted to promote the separation of church and state and to ensure continued taxpayer support for public schools in Montana, expressly prohibits the government from providing “direct or indirect” aid for religious education. In light of the no-aid provision, the Montana Department of Revenue promulgated a rule that would bar SSO scholarships from funding religious education and training at private religious schools. Parents of students attending such schools challenged the rule in court, claiming that it unconstitutionally discriminated against them by excluding religious schools from the tax-credit program. Recognizing the clear conflict with the state’s no-aid provision, the Montana Supreme Court struck down the entire program, abolishing tax-credit funding for all private schools in the state, whether religious or not.

Given the Montana Supreme Court’s ruling, this is a case that never should have made it to the U.S. Supreme Court. The Espinoza plaintiffs challenged the supposedly discriminatory nature of the Department of Revenue’s rule, which would have treated religious and nonreligious education differently; but the Montana Supreme Court resolved the issue by scrapping the tax-credit program in its entirety so that the state would be treating all private schools, both religious and nonreligious, exactly the same. The Montana Supreme Court’s ruling, in short, completely eliminated any purported discrimination. The end result left private religious schools no worse off than their secular counterparts.

Even if the U.S. Supreme Court were inclined to create a newfound right to demand “equal” government funding for religious education, then, this wouldn’t be proper the case in which to do so. It was a mistake to take this case, and the court should dismiss it.

If the court presses on in Espinoza, however, it should not take the radical step of compelling states that enact voucher schemes to fund religious schooling. Montana’s no-aid provision, like similar measures in over three-fourths of the states, reflects an important historical commitment to keeping government out of the business of religious education and training. The Montana constitution embraces the core principle that taxpayer support for religious education not only harms public schools but also undermines true religious liberty by diverting public funds to religious uses, inviting state interference with religious institutions, and fostering religious organizations’ dependence on government largesse. These are basic notions that date back to the founding of the nation, and Montana should have the constitutional authority to promote them.

Indeed, the Supreme Court already recognized that no-aid provisions are a valid exercise of state authority in a related case, Locke v. Davey, over a decade ago. The 7-2 majority opinion in Locke, authored by then-Chief Justice William Rehnquist ― hardly a fan of church-state separation ― held that Washington state could constitutionally restrict specific religious uses of government funding in a general school-scholarship program. The court in Locke rejected a free-exercise challenge to the state’s decision to restrict the use of scholarships for college degrees in theology. Although Washington could have chosen to include such scholarships within its program without violating the establishment clause, the state was not required by the free exercise clause to fund religious training. That is, when making funding decisions states have some constitutional leeway, or “room for play in the joints,” between the two religion clauses of the First Amendment. And given the state’s “historic and substantial” anti-establishment interest in not subsidizing religious education, the court concluded that Washington state’s scholarship restrictions were entirely reasonable and constitutional.

Similarly, even if the Montana Supreme Court had limited the tax-credit program to supporting only nonreligious education, instead of eliminating the program altogether, that decision would fall squarely within the permissible “play in the joints” between the religion clauses.

Hoping to avoid that conclusion, the Espinoza plaintiffs rely heavily on the Supreme Court’s decision in Trinity Lutheran v. Comer. In that narrow 2017 decision, the court found that the state of Missouri violated the free exercise clause by denying a church-operated preschool ― solely because of its religious status ― a grant to buy a new rubber surface for its playground. Assuming that the playground was not used for any religious activity, the court made clear that the case involved only “express discrimination based on religious identity with respect to playground resurfacing,” and did “not address religious uses of funding.” Locke was different, the court explained, because the student there “was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do―use the funds to prepare for the ministry.” The denial of funding in Locke, moreover, was based on the state’s “interest in not using taxpayer funding to pay for the training of clergy” that “lay at the historic core of the Religion Clauses.” As the Trinity Lutheran court noted, “nothing of the sort can be said about a program to use recycled tires to resurface playgrounds.”

Although Trinity Lutheran prohibits states from denying funds based solely on the recipient’s religious status, states may still restrict funding of religious uses. And there is no doubt that Montana’s tax-credit program would subsidize religious activities, instruction, training and indoctrination on a daily basis. Like the state of Washington in Locke, Montana should have the constitutional ability not to fund the “essentially religious endeavor” of religious education. Parents in Montana surely have the freedom to choose private religious training for their kids, but they have no right to force the state to pick up the tab.

The Supreme Court has repeatedly emphasized that there’s “room for play in the joints” between the religion clauses, allowing states to pursue their own independent, longstanding church-state interests. Hopefully, the court won’t fuse those joints shut.

Recommended Citation: Daniel Mach, Symposium: Stripping church-state separation to the bone? The Supreme Court considers mandatory government funding of religious education, SCOTUSblog (Sep. 19, 2019, 2:30 PM), https://www.scotusblog.com/2019/09/symposium-stripping-church-state-separation-to-the-bone-the-supreme-court-considers-mandatory-government-funding-of-religious-education/