The Supreme Court heard arguments on Wednesday in a case that poses a bizarre question: Once states provide public funds to private schools, are they obligated to fund parochialschools, too? The answer should be obvious: Of course the Constitution does not require states to subsidize religious education—to the contrary, it limits the government’s ability to finance religion. Yet the court’s conservative majority may be prepared to turn the First Amendment on its head, compelling states to underwrite the religious indoctrination of children.
Wednesday’s case, Espinoza v. Montana Department of Revenue, demonstrates just how far the Supreme Court has shifted to the right in recent years. SCOTUS did not uphold vouchers for parochial schools until 2002’s Zelman v. Simmons-Harris, a 5–4 decision that drew sharp dissents from the liberal justices. Zelman opened the door to “indirect funding” for religious education, which proliferated in its wake: Today, 29 states, the District of Columbia, and Puerto Rico provide either vouchers or tax credits that reimburse parents who send their children to sectarian institutions.
Montana is one of those states, but it might not be for much longer. In 2015, the legislature enacted a program that gave a tax credit of up to $150 to individuals who donate to scholarship organizations. These groups then use the donations to award scholarships to students who attend private schools, including religious ones. But the Montana constitution bars the state from using public funds to aid any school that is “controlled in whole or in part by any church, sect, or denomination.” In light of this provision, the Montana Supreme Court ruled the tax credit scheme unlawful in 2018. Rather than limit state funding to secular schools, the court invalidated the entire program.
The plaintiffs in Espinoza, who are represented by the libertarian Institute for Justice, are parents who wanted scholarships to keep their children at a Christian school. They allege that the Montana Supreme Court violated the First Amendment’s free exercise clause by axing the scheme. But the plaintiffs have a problem. The core of their argument is that once states fund private schools, they have to include religious schools. Montana, however, can no longer fund any private schools, secular or sectarian. So, the plaintiffs make the broader claim that states cannot stop funding all private schools to avoid giving money to religious ones.
During arguments on Wednesday, the liberal justices were skeptical of all this. Because of the Montana Supreme Court’s decision, Justice Elena Kagan told the Institute for Justice’s Richard Komer, “whether you go to a religious school or you go to a secular private school, you’re in the same boat.” So “there is no discrimination at this point going on, is there?” Komer claimed that the Montana Supreme Court itself discriminated against religious students by shooting down the tax credit program. Does that mean, Justice Sonia Sotomayor wondered, that Montana has “to keep the program alive?” Yes, Komer said: Once “the state chose to give aid,” it could not stop giving aid to refrain from helping parochial schools.
This claim is, to put it mildly, a stretch. There is some precedent for the idea that states can’t deny funding to religious institutions because they are religious. In 2017’s Trinity Lutheran v. Comer, the court held that Missouri violated free exercise by refusing to let a church daycare center compete for a grant to resurface its playground. The exclusion of a church from a public benefit “solely because it is a church,” the court declared, “is odious to our Constitution.” But Trinity Lutheran was explicitly limited to “express discrimination based on religious identity with respect to playground resurfacing,” and disclaimed any impact on “religious uses of funding.”
Everyone agrees that religious schools, unlike the daycare center, will use taxpayer money to indoctrinate students. So Komer’s argument is pretty radical, a far cry from Trinity Lutheran. Just how radical? In his brief, Komer wrote that a student may not be “forced to choose between attending a school that accords with her beliefs or receiving thousands of dollars in government benefits.” But doesn’t that mean states have to fund religious education in par with public education? Komer’s claim would seem to give every child a First Amendment right to attend religious schools on the taxpayer’s dime.