- The Washington Times - Wednesday, January 22, 2020

The Supreme Court’s liberal justices sought Wednesday to school the plaintiffs challenging a Montana voucher program’s ban on funding tuition to religious schools, offering history lessons and thought experiments from the bench.

Justices Stephen G. Breyer and Sonia Sotomayor told plaintiff attorneys during oral arguments in Espinoza v. Montana Department of Revenue that a ruling in their favor would compel the states to fund private, religious schools — in violation of the Founding Fathers’ wishes.

“We have a Founding Father, [James] Madison, lobbying heavily for the free-exercise clause and equally to stop states from both establishing religions or using public funds to support them,” Justice Sotomayor said.

“Say in San Francisco or Boston,” posed Justice Breyer, “They give many, many, many millions of dollars to the public school system Now, they don’t give money to Catholic schools. All right? If we decide you’re right, does that all change?”

But conservatives on the court — following the lead of Justice Samuel A. Alito — suggested that any state ban on funding a scholarship program solely on the basis of religion would be unconstitutional.



Justices Alito and Brett M. Kavanaugh cited the “Blaine Amendment,” a 19th-century measure intended to exclude public funding for Catholic schools at a time when many public schools were tacitly Protestant and immigration from Catholic-majority countries like Ireland and Italy was high. The measure has been adopted by dozens of states, including Montana.

“If we’re going to give benefits to private schools, don’t tell someone they can’t participate because they’re Jewish or Protestant or Catholic,” said Justice Kavanaugh.

In Espinoza v. Montana Department of Revenue, three mothers accuse Montana officials of discriminating against them because of their faith by prohibiting taxpayer-funded scholarships from being used at a Christian school.

The program, created by the Montana legislature in 2015, funnels tax-deductible donations of up to $150 toward tuition payments for low-income parents or the parents of children with disabilities.

The Montana Supreme Court declared the program unconstitutional, invoking a “no-aid” clause for schools run by “churches, sects, or denominations.”

More than 20 states have tax-credit scholarship programs similar to Montana’s, allowing residents to receive tax benefits for donations to funds that go toward covering tuition at private schools.

The U.S. Supreme Court has shown a willingness to side with religious schools seeking public funding, most recently in 2017’s Trinity Lutheran Church of Columbia Inc. v. Comer case. The justices ruled 6-2 that the Christian preschool could not be barred from a Missouri aid program that funded recycled tires to coat playgrounds.

The plaintiffs in Espinoza v. Montana, including Deputy Solicitor General Jeffrey B. Wall, said the mothers’ case was basically the same as Trinity Lutheran’s.

But Justice Elena Kagan interjected, noting she was one of the justices who sided with the majority in the Missouri case, which she said wasn’t like the current case.

“There seems to me a real difference in this case,” Justice Kagan said. “What the state is doing with respect to these educational programs is to say, ‘We don’t want to subsidize religious activity. We don’t want to subsidize religious education.’”

The court gallery featured a row of students bearing the name of their Catholic school basketball team and dignitaries, including Montana Sen. Steve Daines and Education Secretary Betsy DeVos, an outspoken proponent of voucher programs.

Before the arguments, Mr. Daines championed the mothers’ challenge outside the courthouse.

“This is about the fact that Montana parents and children are being discriminated against simply because of the school that they choose,” he said.

Wednesday’s hearing got underway just hours after Chief Justice John G. Roberts had finished presiding over the Senate impeachment trial of President Trump.

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