Yesterday, the U.S. Supreme Court in Espinoza vs. Montana Department of Revenue upheld state laws that allow public funds to be used to fund religious education. That decision is set out below. But it is important to know that Georgia has a similar tax program called the Qualified Education Tax Credit. This is used to fund scholarships for students enrolled in private schools. The donor makes a contribution to a private school through a nonprofit student scholarship organization. The organization passes it to the school; and the school uses it as a tuition subsidy. The donor then gets 100% of the money back as a state income tax credit. The School Superintendents Association opposes tax-based tuition subsidies because they leave less money on the table for public schools. In the report, Public Loss, Private Gain, the Institute for Taxation and Economic Policy describes this law as a diversion of critical resources away from public schools. The American Federation of Teachers stated that it feared the ruling would be used to “defund and dismantle public education”.
In Espinoza vs. Montana Department of Revenue. The Montana Legislature granted tax credits to those who contribute to organizations that provide scholarships for private school tuition. The Montana state Constitution bars government aid to any school controlled in part by any church, sect or denomination. Three mothers who were blocked from using the scholarships at religious schools filed suit, alleging that the schools discriminated on the basis of religion. The Free Exercise Clause of the First Amendment of the U.S. Constitution protects religious observance against unequal treatment and against laws that impose disabilities on religious practice. Montana’s no aid provision excludes religious schools from public benefits solely because of the religious status. Therefore, strict scrutiny is required. To satisfy strict scrutiny, government action must advance the interest of the highest order and must be narrowly tailored in pursuit of that interest. The court held that Montana’s interest in creating a greater separation of church and state than the Federal Constitution requires cannot qualify as compelling in the face of the Free Exercise clause. Justice Roberts delivered the majority opinion, joined by Thomas, Gorsuch and Alito. Ginsburg, Kagan, Breyer and Sotomayor dissented.
The majority held that the Free Exercise Clause protects against any laws that penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens. Disqualifying otherwise eligible recipients from a public benefits solely because of their religious character imposes a penalty on the free exercise of religion.