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.
Justice Thomas concurs in a separate opinion complaining that the modern understanding of the Establishment Clause is a “brooding omnipresence” used to justify the government’s infringement on religious freedom. Thomas complains the Establishment Clause was meant to protect the establishment of a state religion by the Federal government. The modern view is that the State must remain completely separate from and virtually silent on matters of religion. Alito separately concurs giving a history lesson on the sectarian laws that emanated from years of bigotry against Catholicism, Mormons and Jews. Alito points out that Montana’s no-aid provision in its constitution arose as a result of laws with this same prejudice of public funds funding certain religious schools.
Actually, if you have the time, Alito provides a pretty interesting history lesson on how public schools funding and approach was meant to inculcate a form of “least common denominator Protestantism” more than a scrupulously neutral religious ground. Catholic and Jewish schools sprang up because the common/public school system was not neutral. When these schools requested state funding, laws were drafted that labeled them “sectarian” – separating themselves from the prevailing orthodoxy – and limiting funds on the basis of constitutional bans. Alito argues that the tax credit helps parents of modest means do what the more affluent parents can do: send their children to the school of their choice. Gorsuch adds this great line: the Free Exercise Clause “seeks to ensure that religion remains ‘a matter of voluntary choice by individuals and their associations, where each sect flourishes according the zeal of its adherents and the appeal of its dogma’ influenced by neither where the government points its gun nor where it places its thumb on the scale”.
Ginsburg in her dissent argues that the Free Exercise Clause is written in terms of what the government cannot do to the individual, not what the individual can extract from the government. She argues the state mandated only that the state treasury not be used to fund religious schools, not that differential treatment was required. Breyer and Kagan argue in dissent that the court has long recognized that both the rigid application of the Free Exercise Clause and the Establishment Clause bring these two into conflict and defeat their basic purposes. They argue that the overwhelming majority of private schools are religious. State funding of religious teaching stirs fears of preference for religion. They argue that 250 years of precedent draws a line at forcing taxpayers to pay the salaries of those who teach their religious faith from the pulpit; which is no different than those who teach it from the classroom. The legislature’s decision not to fund a religious right is not subject to strict scrutiny. Sotomayor complains that the tax program was disbanded and the court is wrongly now answering a hypothetical question or requiring a State to reinstate a tax-credit program its Constitution did not demand.
All in all, tax credit programs to direct state tax dollars away from public schools and into the coffers of religious schools now has a green light.