- The Washington Times - Friday, June 28, 2019

Supporters of so-called “school choice” got a win Friday in the Supreme Court.

The court announced that it would add Espinoza v. Montana Department of Revenue to its fall calendar for oral arguments, setting up a potentially significant gain that could allow more states to establish voucher-style programs that funnel public dollars into private education.

At issue in Espinoza is whether the Montana state legislature can provide tax credits for families sending children to religious schools. Last year the Montana Supreme Court said no. A bill enacted in 2015 by the legislature and allowed to become law by then-Gov. Steve Bullock, now a Democratic presidential candidate, violated the state’s constitutional ban on public dollars for religious education, according to the court’s ruling.

But petitioners — three mothers of children attending religious school in Flathead County — have argued the state’s refusal to issue tax credits is religious discrimination.

On Friday, the Supreme Court picked up supporters of the law’s petition in slating the oral argument for the fall term.

“States cannot base laws on hostility to religion,” said John Bursch, an attorney with Alliance Defending Freedom, who filed a brief in support of the petition. “Likewise, no provision of Montana’s constitution can enshrine hostility to religion into state law. We commend the Supreme Court for taking this case.”

The defendant is the Montana Department of Revenue and its director, who has refused to issue credits to parents of students attending religious schools, citing the U.S. Constitution’s religion and equal protection clauses.

In its response to the petitioners filed in May, counsel for the state argued the Supreme Court lacked jurisdiction.

“Both courts expressly declined to reach federal constitutional issues,” said the brief, filed by Daniel J. Whyte, special assistant attorney general for Montana. “The premature end of Montana’s unusual and temporary scholarship program does not present any important federal question.”

Conservative legal organizations have sought to widen the playing field in the wake of the court’s 2017 ruling in Trinity Lutheran. In that case, the court in a plurality found a Missouri stage agency violated an avowedly religious preschool’s rights by denying them access to a public lottery for recycled tire bits to resurface playgrounds.

Montana’s constitution, drafted and ratified in 1972, expressly forbids public dollars being spent on religious education. In its news release, ADF suggested the constitutional provision was motivated by the “dead hand of 19th century anti-Catholic bigotry.”

Former Wisconsin Gov. Scott Walker also filed a friend-of-the-court brief, saying Montana’s decision and similar decisions “imperil” school-choice vouchers in Milwaukee, which has one of the nation’s oldest and largest such programs.

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