Oral Arguments in the Montana School Choice Case are Today

Today, in fact right now, the United States Supreme Court is scheduled to finally hear the oral arguments in the case of Espinoza v. Montana Department of Revenue, which the Court agreed to hear back in June of last year.

In 2015, lawmakers in Montana passed a school choice program that provided a state tax credit for private donations made to non-profit K-12 scholarship granting organizations. The following year, the program was halted by overzealous regulators at the state’s department of revenue who invoked the Montana constitution’s Blaine Amendment to bar scholarship recipients from using these funds at religious schools.

A group of plaintiffs comprised of three mothers wishing to send their children to religious private schools challenged the Department of Revenue rule and so began the case now before the Supreme Court. The parents’ argument was that the rule that effectively invalidate the program was unconstitutional under both the Montana and the United States Constitutions as it violated their right to free exercise of religion. Despite the U.S. Supreme Court’s ruling in Trinity Lutheran v. Comer not long prior, the Montana State Supreme Court ended the program.

The case being heard today aims to answer the issue of whether it

[violates] the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools?

In other words, what is largely at stake is the issue of the constitutionality of state level provisions, generally known as Blaine Amendments, which were designed to prohibit public funding from benefiting religious institutions.

Importantly, the case aims to challenge Blaine Amendments under the Equal Protection Clause of the 14thamendment. On this front the Independence Institute has played an important role with the filing of an amicus brief stressing the longstanding pejorative nature of the term “sectarian” which the Montana Constitution retained upon re-ratification in the 1970s. The II brief is cited in a recent Atlantic piece addressing the issue of inter-denominational prejudice in the context of Blaine Amendments.

It should be pointed out that Colorado’s current Attorney General, Phil Weiser, joined his counterparts from other states with Blaine Amendments on the books in filing an amicus brief expressing their support for the Montana Department of Revenue Rule.