Espinoza v. Montana Department of Revenue

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Espinoza v. Montana Department of Revenue
Term: 2019
Important Dates
Argument: January 22, 2020 Decided: June 30, 2020
Outcome
Reversed and remanded
Vote
5-4
Majority
Chief Justice John G. Roberts • Clarence Thomas • Samuel Alito • Neil Gorsuch • Brett Kavanaugh
Concurring
Clarence Thomas • Samuel Alito • Neil Gorsuch
Dissenting
Ruth Bader Ginsburg • Elena Kagan • Stephen Breyer • Sonia Sotomayor

Espinoza v. Montana Department of Revenue was argued before the Supreme Court of the United States on January 22, 2020, during the court's October 2019-2020 term. The case came on a writ of certiorari to the Montana Supreme Court.

The U.S. Supreme Court reversed and remanded the Montana Supreme Court's ruling in a 5-4 opinion, holding the application of Article X, Section 6 of the Montana Constitution violated the free exercise clause of the U.S. Constitution. The majority held that the application of Article X, Section 6 was unconstitutional because it barred religious schools and parents who wished to send their children to those schools from receiving public benefits because of the religious character of the school. Click here for more information.

HIGHLIGHTS

The case: A 2015 Montana law established a tax credit scholarship program that matched—up to $150 a year—taxpayer donations to organizations that issued scholarships for private school students. To ensure compliance with the Montana Constitution, the state Department of Revenue established Rule 1, which barred recipients from using the scholarships at religiously-affiliated private schools. Kendra Espinoza, Jeri Anderson, and Jaime Schaefer, the plaintiffs, challenged Rule 1 in the Montana 11th Judicial District Court. The 11th Judicial District granted summary judgment to the plaintiffs, prohibiting the rule's enforcement. On appeal, the Montana Supreme Court reversed the 11th Judicial District's ruling, holding the law violated the state constitution's Blaine Amendment. The plaintiffs appealed to the U.S. Supreme Court, writing that the Montana Supreme Court's ruling "deepened the long-standing split on whether barring religious options from student-aid programs violates the federal Religion and Equal Protection Clauses."

The issue: Does it violate 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?

The outcome: The U.S. Supreme Court reversed and remanded the Montana Supreme Court's ruling in a 5-4 opinion, holding the application of Article X, Section 6 of the Montana Constitution violated the free exercise clause of the U.S. Constitution. The majority held Article X, Section 6 violated the free exercise clause by barring religious schools and parents who wished to send their children to those schools from receiving public benefits because of the religious character of the school.

Why it matters: The case concerned whether the government can exclude religious institutions from student-aid programs and related to Article X, Section 6 of the Montana Constitution, also known as Montana’s Blaine Amendment. The case addressed the tension between the Free Exercise and Establishment Clauses of the U.S. Constitution—where one guarantees the right of individuals free exercise of religion and the other guarantees that the state won't establish a religion—and the intersections of state constitutions with state law and with the U.S. Constitution.

Table of contents:

• Click here to review the outcome of the case.
• Click here to review the oral argument in this case.
• Click here to review media coverage regarding this case.
• Click here to review information on Blaine Amendments.
• Click here to review the amicus curiae briefs filed in this case.
• Click here to review the opinion from the U.S. Supreme Court.
• Click here to review the opinion from the Montana Supreme Court.
• Click here to review the opinion from the Montana 11th Judicial District Court.

Timeline

The following timeline details key events in this case:

• June 30, 2020: The U.S. Supreme Court reversed and remanded the Montana Supreme Court's decision in a 5-4 opinion.
• January 22, 2020: Oral argument was held.
• June 28, 2019: The U.S. Supreme Court agreed to hear the case.
• March 12, 2019: Kendra Espinoza, Jeri Ellen Anderson, and Jaime Schaefer, the petitioners, filed a petition with the U.S. Supreme Court.
• January 24, 2020: The Montana Supreme Court granted a partial stay of the scholarship program, pending a final judgment from the U.S. Supreme Court.
• December 12, 2018: The Montana Supreme Court reversed the ruling of the Montana 11th Judicial District Court in a 5-2 decision.
• May 26, 2017: Judge Heidi Ulbricht of the Montana 11th Judicial District Court issued a permanent injunction against enforcement of the Montana Department of Revenue's Rule 1.
• March 31, 2016: Judge David M. Ortley of the Montana 11th Judicial District Court issued a preliminary injunction against Rule 1, intended to ensure that the tax-credit scholarship program was compliant with the Montana Constitution.
• December 25, 2015: Rule 1 went into effect.
• December 16, 2015: The petitioners filed a lawsuit challenging Rule 1.
• May 8, 2015: The Montana State Legislature enacted a tax-credit scholarship program, enacting a $150 tax credit to individuals and businesses who donate to private scholarship organizations.

Background

In 2015, the Montana State Legislature enacted a law (Senate Bill 410) that included a provision entitled the "Tax Credit for Qualified Education Contributions" (the tax credit program). The provision matched dollar-to-dollar tax credits of up to $150 to taxpayers donating to organizations providing scholarships for students who attend private schools that qualify as Qualified Education Providers (QEP).

The law made the Montana Department of Revenue (the Department) responsible for administering the tax credit, gave the Department rulemaking authority to implement the provision, and instructed the Department to ensure compliance with the Montana Constitution. To ensure compliance, the Department established Rule 1, which excluded religiously-affiliated private schools as QEPs. Click here to read Rule 1.

According to the Department, Rule 1 ensured compliance with Article X, Section 6 of the Montana Constitution, also known as Montana's Blaine Amendment.

Litigation

Montana 11th Judicial District Court

Kendra Espinoza, Jeri Anderson, and Jaime Schaefer, the plaintiffs, had children attending Stillwater Christian School in Kalispell, Montana. The plaintiffs were counting on scholarships for help with tuition. They challenged Rule 1 in the Montana 11th Judicial District Court. They argued (1) that the Department did not have the authority to issue Rule 1 and (2) that Rule 1 violated the equal protection, free exercise of religion, and establishment clauses under the Montana and U.S. Constitutions. The district court granted summary judgment to the plaintiffs and prohibited the rule's enforcement.

• Click here for more information on the 11th Judicial District Court's ruling.

  The 11th Judicial District Court reviewed whether the tax credit violated Article X, Section 6 of the Montana Constitution.

  Judge Heidi Ulbricht wrote that the court concluded the Department did not correctly interpret the state constitution when creating Rule 1. Referring to Article V, Section 11 and Article X, Section 6 of the state constitution, Ulbricht wrote that both articles "prohibit appropriations that aid religious schools but they are silent concerning tax credits." As a result, Rule 1 was "based on an incorrect interpretation of the law." The court did not address the Rule's constitutionality or whether the articles in the state constitution violated the U.S. Constitution.

  Read the opinion here:

Montana Supreme Court

The Department appealed the 11th Judicial District Court's decision to the Montana Supreme Court, arguing the tax credit program was unconstitutional without Rule 1. The Montana Supreme Court reversed the lower court's ruling in a 5-2 decision, holding the tax credit program violated Article X, Section 6 of the Montana Constitution.

• Click here for more information on the Montana Supreme Court's ruling.

  Justice Laurie McKinnon delivered the opinion of the court. Justice Ingrid Gustafson filed a concurring opinion, joined by Chief Justice Mike McGrath and Justice Dirk M. Sandefur. Justice Sandefur also filed a concurring opinion. Justice Beth Baker dissented, joined by Justice James Rice. Rice also filed a dissenting opinion.

  The majority opinion
  The Montana Supreme Court concluded that the tax credit program violated Article X, Section 6 of the Montana Constitution. Writing for the majority, Justice McKinnon cited the plain language of Article X, Section 6 and transcripts from the 1972 Montana Constitutional Convention to conclude that the provision was intended to "broadly and strictly prohibit aid to sectarian schools."

  McKinnon wrote, "Because the Tax Credit Program does not distinguish between an indirect payment to fund a secular education and an indirect payment to fund a sectarian education, it cannot, under any circumstance, be construed as consistent with Article X, Section 6."

  Because the tax credit program was unconstitutional, the court also ruled Rule 1 was superfluous.

  Concurring opinion: Justice Gustafson
  Justice Gustafson filed a concurring opinion, writing separately to discuss additional ways the tax credit program created an indirect payment under Article X, Section 6. Gustafson wrote, "By creating a diversionary scheme whereby money otherwise bound for the public treasury is diverted, the Legislature has created an indirect payment."

  She also discussed how the program violated the free exercise of religion and establishment clauses under the U.S. Constitution. "The Legislature ran afoul of the Establishment and Free Exercise Clauses by compelling taxpayers who seek the tax credit to relinquish the choice as to whether to support a religious school, and whether to support, or decline to support, a particular religion," she wrote.

  Concurring opinion: Justice Sandefur
  Justice Sandefur filed a concurring opinion, writing the tax credit program acted as an indirect payment of public funds to religiously-affiliated private schools. "However neutrally characterized, a law diverting money otherwise earmarked and accrued to the public purse to allow parents to choose religiously-affiliated schools is clearly tantamount to an indirect payment of government monies for a sectarian purpose and aids schools controlled in whole or in part by a particular church, religious sect, or religious denomination," he wrote. Sandefur also agreed with Justice Gustafson's opinion that the program violated the U.S. Constitution's establishment clause.

  Dissenting opinion: Justice Baker
  Justice Baker dissented, writing that "in my view, the Court oversteps its own authority in invalidating § 15-30-3111, MCA (the Tax Credit Program), as unconstitutional."

  Baker wrote the court was wrong to use Article X, Section 6's title to interpret the provision as broadly prohibiting "aid" to sectarian schools. Baker argued the court should have used the terms "appropriation or payment from any public fund or monies" instead. "As an established principle of statutory construction, we do not rely on a provision’s title over the language contained within its text," she wrote.

  Baker disagreed with the majority that the tax credit program was an indirect payment of public funds to sectarian schools. Because the statute diverted funds before they became public, it had "an indirect impact on the 'public fund or monies,'" but did not create an indirect payment.

  Baker also disagreed with the majority opinion that the tax credit program as a whole was unconstitutional: "Conceivably, the statute would not be applied unconstitutionally if a student chose to apply her scholarship to a non-sectarian private school. In such a case, the tax credits offered under the statute would not offend Article X, Section 6."

  Baker concluded that the state supreme court's ruling "calls into question numerous other state laws granting tax credits that may benefit religious entities."

  Dissenting opinion: Justice Rice
  Justice Rice dissented, arguing the court's ruling was "largely devoid of supporting authority" and was an incorrect interpretation of the state constitution and legal principles. He wrote, "In my view, the Court’s conclusion that the Program 'permits the Legislature to indirectly pay' sectarian schools is not supported by the facts here, and, as Justice Baker’s dissenting opinion also illustrates, is not supported by the plain language of the Constitution or the history of the Constitutional Convention."

  Makeup of the court:
  The following justices heard the case and were involved in the decision:

  ■ Chief Justice Mike McGrath

  ■ Justice Laurie McKinnon

  ■ Justice Jim Shea

  ■ Justice Dirk M. Sandefur

  ■ Justice Ingrid Gustafson

  ■ Justice Beth Baker

  ■ Justice James Rice

  
  Read the opinion here:

Petition to the U.S. Supreme Court

The plaintiffs appealed to the U.S. Supreme Court, writing that the Montana Supreme Court's ruling "deepened the long-standing split on whether barring religious options from student-aid programs violates the federal Religion and Equal Protection Clauses."

• Click here for more information on the petition to the U.S. Supreme Court.

  The 6th, 7th, 8th, and 10th U.S. Courts of Appeals, as well as the New Mexico Supreme Court, ruled the government may not prohibit religious institutions in student-aid programs. These courts held such a prohibition violated the Free Exercise, Establishment, and Equal Protection clauses of the U.S. Constitution. The 1st and 9th U.S. Courts of Appeals and the Maine and Vermont Supreme Courts held the opposite.

  The plaintiffs argued the conflict in circuit court and state court interpretations "deprived low-income children in both religious and nonreligious schools of student aid." They wrote, "Resolving this issue will allow these children to legally participate in student-aid programs and also bring much-needed clarity to state and local governments."

Constitutional clauses

Free Exercise Clause

The Free Exercise Clause refers to the section of the 1st Amendment of the United States Constitution, which prohibits Congress from creating a law that would bar the free exercise of religion.

• Click here for an explanation of the Free Exercise Clause.

  The following legal definitions of the Free Exercise Clause are sourced from Cornell Law School's Legal Information Institute:

  “	The Free Exercise Clause refers to the section of the First Amendment italicized here: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. Free-exercise clauses of state constitutions which protected religious “[o]pinion, expression of opinion, and practice were all expressly protected” by the Free Exercise Clause. The Clause protects not just religious beliefs but actions made on behalf of those beliefs. More importantly, the wording of state constitutions suggest that “free exercise envisions religiously compelled exemptions from at least some generally applicable laws.” The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons. In the terms of economic theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects. Constitutional scholars and even Supreme Court opinions have contended that the two religion clauses are in conflict. E.g., Thomas v. Review Board, 450 U.S. 707 (1981). As mentioned previously, the Free Exercise Clause implies special accommodation of religious ideas and actions, even to the point of exemptions to generally applicable laws. Such a special benefit seems to violate the neutrality between “religion and non-religion” mandated by the Establishment Clause. [Michael W. McConnell] explains: If there is a constitutional requirement for accommodation of religious conduct, it will most likely be found in the Free Exercise Clause. Some say, though, that it is a violation of the Establishment Clause for the government to give any special benefit or recognition of religion. In that case, we have a First Amendment in conflict with itself—the Establishment Clause forbidding what the Free Exercise Clause requires. Historically, the Supreme Court has been inconsistent in dealing with this problem. At various times, the Court has either applied a broad or narrow application of the clause. When the First Amendment was drafted, it applied only to the U.S. Congress. As such, state and local governments could abridge the Free Exercise Clause as long as there was no similar provision in the state constitution. In 1940, the Supreme Court held in Cantwell v. Connecticut that, due to the Fourteenth Amendment, the Free Exercise Clause is enforceable against state and local governments (this act of using the Fourteenth Amendment as the vehicle through which the Court applies the Bill of Rights to the states is also known as the Incorporation Doctrine).	”
  —Cornell Law School Legal Information Institute

  
  

Equal Protection

The Equal Protection Clause refers to the section of the Fourteenth Amendment of the United States Constitution, which provides that “nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws.”

• Click here for an explanation of equal protection.
  The following legal definitions are sourced from Cornell Law School's Legal Information Institute.

  
  The following is an overview definition of Equal Protection:

  “	Equal Protection refers to the idea that a governmental body may not deny people equal protection of its governing laws. The governing body state must treat an individual in the same manner as others in similar conditions and circumstances.	”
  —Cornell Law School Legal Information Institute

  
  The following is a definition of Equal Protection as it pertains to the U.S. Constitution:

  “	The Fifth Amendment's Due Process Clause requires the United States government to practice equal protection. The Fourteenth Amendment's Equal Protection Clause requires states to practice equal protection. Equal protection forces a state to govern impartially—not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective. Thus, the equal protection clause is crucial to the protection of civil rights.	”
  —Cornell Law School Legal Information Institute

  
  

Establishment Clause

The Establishment Clause refers to the section of the 1st Amendment of the United States Constitution, which prohibits Congress from establishing any law "respecting an establishment of religion."

• Click here for an explanation of the Establishment Clause.
  The following legal definition is sourced from Cornell Law School's Legal Information Institute:

  “	The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion. Although some government action implicating religion is permissible, and indeed unavoidable, it is not clear just how much the Establishment Clause tolerates. In the past, the Supreme Court has permitted religious invocations to open legislative session, public funds to be used for private religious school bussing and textbooks, and university funds to be used to print and public student religious groups' publications. Conversely, the Court has ruled against some overtly religious displays at courthouses, state funding supplementing teacher salaries at religious schools, and some overly religious holiday decorations on public land. One point of contention regarding the Establishment Clause is how to frame government actions that implicate religion. Framing questions often arise in the context of permanent religious monuments on public land. Although it is reasonably clear that cities cannot install new religious monuments, there is fierce debate over whether existing monuments should be removed. When the Supreme Court recently considered this issue in Van Orden v. Perry, 545 U.S. 677 (2005), and McCreary County v. ACLU, 545 U.S. 844 (2005), it did not articulate a clear general standard for deciding these types of cases. The Court revisited this issue in Salazar v. Buono (08-472), a case which considered the constitutionality of a large white Christian cross erected by members of the Veterans of Foreign Wars on federal land in the Mojave Desert. While five Justices concluded that a federal judge erred in barring a congressionally ordered land transfer which would place the memorial on private land, there was no majority reasoning as to why. Three Justices held that the goal of avoiding governmental endorsement of religion does not require the destruction of religious symbols in the private realm, while Justice Scalia and Justice Thomas concluded that the plaintiff lacked standing to bring this complaint.	”
  —Cornell Law School Legal Information Institute

  
  

Blaine Amendment

Espinoza v. Montana Department of Revenue
Espinoza v. Montana Department of Revenue
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Origins

See also: Blaine Amendment (U.S. Constitution)

The Blaine Amendment refers to the constitutional amendment proposed on December 14, 1875, by Rep. James G. Blaine (1830-1893) of Maine in reaction to efforts by religious groups, mainly the Catholic Church, to establish parochial schools with public funding. The amendment passed in the U.S. House of Representatives but did not receive the necessary two-thirds vote in the U.S. Senate.

The language and substance of the Blaine Amendment were incorporated into many state constitutions, especially in the West after Congress made it a pre-condition for admission into the Union in 1876. Thirty-seven states came to have such amendments forbidding public funds from being used for sectarian schools.

Blaine Amendment in the Montana Constitution

See also: Montana Constitution

Montana adopted a Blaine Amendment when it became a state in 1889. At that time, the state constitution included a ban on using public funds to "aid in the support of any school ... controlled in whole or in part by any church, sect or denomination whatever." In 1972, Montana adopted a new constitution, maintaining a similar provision.

Article X, Section 6 of the Montana Constitution is known as Montana's Blaine Amendment. It was incorporated in the state's 1972 constitution.

Text of Section 6: Aid Prohibited to Sectarian Schools (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination. (2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.

Blaine Amendments in state constitutions

See also: Blaine amendments in state constitutions

Blaine Amendments were added to the state constitutions of 38 states. Louisiana's Blaine Amendment was repealed by voters in 1974, leaving 37 states with Blaine Amendments in their constitutions as of 2020. In 31 states, the existing versions of Blaine Amendments were included when the state's most recent constitution or constitutional revision was ratified by voters, which means voters did not vote specifically on the Blaine Amendment but rather considered an entirely new constitution or a larger set of revisions that contained the Blaine Amendment language. In six states, Blaine Amendments were added through specific constitutional amendments, at least three of which were referred to the ballot by constitutional revision commissions. In Utah and South Carolina, the states' Blaine Amendments were amended to remove the prohibition against indirect public funding of religious schools, leaving a prohibition against direct public funding.

Click here to read more about Blaine Amendments in state constitutions.

Lawsuits related to Blaine Amendments

The cases listed below also relate to Blaine Amendments. Click on their name to see the ruling. To submit recommendations for inclusion on this page, email editor@ballotpedia.org.

• Moses v. Ruszkowski (2018)
• Thomas v. Douglas County Board of Education, Colorado (2016)
• Prescott v. Oklahoma Capitol Preservation Commission (2015)
• Moses v. Skandera (2015)
• Duncan v. Nevada (2015)
• Duncan v. New Hampshire (2014)
• Niehaus v. Huppenthal (2013)
• LaRue v. Douglas County School District, Colorado (2011)
• Green v. Garriott (2009)
• Pucket v. Hot Springs School (2008)
• DeBoom v. Bergeson (2008)
• Cain v. Horne (2007)
• Colorado Congress of Parents, Teachers, and Students v. Owens (2003)
• Harrison v. Gregoire (2002)
• Anderson v. Town of Durham, Maine (2002)
• Mitchell v. Helms (2000)
• College of New Rochelle v. Nyquist (1971)

Questions presented

The petitioner presented the following questions to the court:

Questions presented: Does it violate 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?

Oral argument

Audio

Audio of oral argument:

Petitioners

Kendra Espinoza, Jeri Ellen Anderson, and Jaime Schaefer, the petitioners, are mothers who applied for scholarships for their children to continue attending Stillwater Christian School, in Kalispell, Montana.

Attorneys for petitioners
	Richard Donen Komer Counsel of record Institute for Justice 901 North Glebe Road Suite 900 Arlington, VA 22203 dkomer@ij.org (703) 682-9320
Attorneys for the United States, as amicus curiae, supporting the petitioners
	Jeffrey B. Wall Principal deputy solicitor general U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001 SupremeCtBriefs@USDOJ.gov (202) 514-2203
Source: Supreme Court of the United States, Espinoza v. Montana Department of Revenue, "Docket No. 18-1195," accessed April 24, 2020

Respondents

The respondents in the case are the Montana Department of Revenue, and Gene Walborn, in his official capacity as director of the Montana Department of Revenue.

Attorneys for respondents
	Adam G. Unikowsky Counsel of record Jenner & Block LLP 1099 New York Avenue, NW Suite 900 Washington, D.C. 20001 AUnikowsky@jenner.com 202-639-6041
Source: Supreme Court of the United States, Espinoza v. Montana Department of Revenue, "Docket No. 18-1195," accessed April 24, 2020

Argument excerpts

This section includes excerpts of the opening and rebuttal statements presented before the Court by relevant counsel and amicus curiae during the oral argument on January 22, 2020. Click [show] to access the excerpts.

Oral argument of Richard D. Komer on behalf of the petitioners

Richard D. Komer, attorney for petitioners

“ Mr. Chief Justice, and may it please the Court: This case asks whether the Federal Constitution allows the wholesale exclusion of religious schools from scholarship programs. It does not. Yet, Montana's Blaine Amendment requires that exclusion. As a result, the Blaine Amendment discriminates against religious conduct, beliefs, and status in violation of the free-exercise clause under Trinity Lutheran. The Montana Supreme Court disagreed. That court held that barring religious schools from the program did not violate the Federal Constitution. This Court should reverse that judgment. Even Respondents now concede that excluding religious schools from the program is unconstitutional, but they argue that the court avoided this discrimination by invalidating the entire program. This is wrong. The only reason the court invalidated the program was because it included religious schools. And the court's remedy did not cure its discriminatory judgment, nor should the remedy shield the judgment from review. Petitioners brought this lawsuit because they were denied scholarships based on religion, and they are still being denied scholarships based on religion. If the court had shut down the program because it included Muslim schools or African-American schools, there's no question that would be unconstitutional. We ask you to reverse. Respondents argue in the alternative that Locke allows them to exclude the religious schools and that this case falls within the play in the joints. But that would allow the exception to swallow the rule. As Trinity Lutheran made clear, the rule is religious neutrality and Locke only a narrow exception. We argue that Locke is the exception that proves the rule. ... ” —Richard D. Komer

Oral argument of Jeffrey B. Wall for the United States, as amicus curiae, supporting the petitioners

Jeffrey B. Wall, amicus curiae for petitioners

“ Mr. Chief Justice and may it please the Court: The Montana Supreme Court held that the Montana constitution requires religious discrimination that the federal constitution forbids. Parents may not direct scholarships to schools solely because those schools are religiously affiliated. Now, the state doesn't defend that error of federal law, but says it was washed away when the court invalidated the entire program and left everyone empty-handed. The Montana Supreme Court had no power under federal law to invalidate anything. It relied on a state constitutional provision that is inconsistent with and preempted by the federal free-exercise clause, and, crucially, Petitioners continue to suffer from that federal free exercise violation regardless of whether any parents received scholarships or also suffer as collateral damage. If the Montana Supreme Court had invalidated this program because it included historically African-American schools or all-girl schools, that would be a straightforward equal-protection violation. Nothing about it would be cured by the fact that other parents had been denied funding as well. ” —Jeffrey B. Wall

Oral argument of Adam G. Unikowsky on behalf of the respondents

Adam G. Unikowsky, attorney for respondents

“ Mr. Chief Justice, and may it please the Court: The Constitution does not bar the State of Montana from enacting and applying a state constitutional provision that keeps its own state legislature out of the business of funding of religious schools. The no-aid clause does not prohibit anyone's free exercise of religion. To the contrary, it protects religious freedom by protecting religious schools from government influence and ensuring that government cannot use aid as leverage to influence the content of religious education. Petitioners attempt to analogize this case to Trinity Lutheran but the analogy is inapt for two reasons: The first reason is that the coercion aspect of Trinity Lutheran, which was crucial to the Court's decision, was absent here. In Trinity Lutheran, the church put to a stark choice: Either abandon your religious faith and become a nice secular stone building with a daycare facility and you're going to get the money or stick to your religious faith and you won't get -- you won't get the money. And that coercion was the premise of the Court's decision that there is a penalty on free exercise. That's not happening in this case where the state court held that Montana wasn't even capable of knowing whether a particular parent would use money for a religious and non-religious school, and it therefore held that regardless of how the money was spent, there wouldn't be a tax credit. The second distinction from Trinity Lutheran is that Trinity Lutheran involved the refusal to give money to a church for a completely non-religious purpose, merely because it was a church. This case is different in that the state is simply declining to fund religious education. The state court did not hold that under the no-aid clause, religious schools would be denied funding for non-religious purposes. So let me start with the standing point which came up during the first half hour. So we didn't, as the Court knows, it's in an amicus brief, but we didn't make the argument in our brief because we concluded that the arguments really went more to the merits rather than standing. We -- I --I mean, we believe there's an attenuated connection between the state action here and Petitioners' free exercise of religion but Petitioners are alleging in their brief that they personally are the victims of status discrimination because they are Christians. We think that's wrong based on what the state court actually did, but historically the courthouse doors have been open to make that kind of argument. But we think on the merits, there simply isn't a prohibition on the free exercise. ” —Adam G. Unikowsky

Rebuttal argument Richard D. Komer on behalf of the petitioners

Richard D. Komer, attorney for petitioners

“ Thank you. What we're saying here is that -- what Trinity Lutheran says, the state can't discriminate on the basis of religion. The decision is crystal clear when you read it that that is what they are doing in this case. They focus on the religious affiliation or religious nature of the schools. They are not talking about what the schools do. They are talking about what the schools are. Second, Zelman has already answered the question about who this program is aiding. It's not aiding the schools. It is aiding the parents. You have a choice to make about the parents here. You can either view them as mere inconsequential conduits through which public funds flow to the religious schools they choose or you can regard them, as you did in Zelman, as free and independent decision-makers who are being given the power to choose a religious education or a secular education in private schools. We are not arguing that the state couldn't just fund public schools. We are saying that when the legislature, when the state makes the decision to empower parents to exercise their right to choose and direct their children's education, that the state cannot distinguish between parents who want a religious education for their children and parents who want a secular private education for their parents. We are only in that area because the state legislature has made, like Montana did, the decision to open it up beyond the public schools. We don't question that the public schools must be secular. This Court recognized that in Schempp. And, as a result, the public schools now must be secular. But at the time these provisions were passed, the public schools were not secular. ” —Richard D. Komer

Amicus briefs

See also: Amicus brief

An amicus curiae brief refers to a brief filed in a case with the intent of influencing the court's decision. Amicus curiae or amici curiae are typically an individual or group who are not a party to an action in a case but have a strong interest in the issues presented. In order to file an amicus brief, the amicus curiae petitions the court for permission to submit the brief.

The table below lists the amicus briefs filed in Espinoza v. Montana Department of Revenue. Click [show] to see the full table. Click on the link in the "Filed by" column to access the brief directly.

Amicus curiae briefs
Filed by	Date filed	Conclusion
Foundation for Moral Law	September 11, 2019	The Montana Supreme Court's decision should be reversed.
Mackinac Center for Public Policy	September 12, 2019	The brief was submitted in support of the petitioners. The Mackinac Center for Public Policy urged the U.S. Supreme Court to issue a broad ruling if it were to invalidate Montana's program.
American Center for Law and Justice	September 16, 2019	The Montana Supreme Court's decision should be reversed.
The Cato Institute	September 17, 2019	The Montana Supreme Court's decision should be reversed.
Center for Constitutional Jurisprudence	September 16, 2019	The Montana Supreme Court's decision should be reversed.
Pioneer Institute	September 16, 2019	The U.S. Supreme Court should rule in favor of the petitioners.
Opportunity Scholarship Fund	September 16, 2019	The Montana Supreme Court's decision should be reversed.
EdChoice, et al.	September 17, 2019	The Montana Supreme Court's decision should be reversed.
The Honorable Scott Walker	September 17, 2019	The U.S. Supreme Court should rule in favor of the petitioners and, in so doing, overturn Locke v. Davey (2004).
Montana Catholic School Parents, et al.	September 17, 2019	The Montana Supreme Court's decision should be reversed.
States of Oklahoma, et al.	September 17, 2019	The Montana Supreme Court's decision should be reversed.
Alliance for Choice in Education	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Americans for Prosperity and Yes. Every Kid.	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Arizona Christian School Tuition Organization et al.	September 18, 2019	The Montana Supreme Court's decision should be reversed.
The Becket Fund for Religious Liberty	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Billy Graham Evangelistic Association, et al.	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Center for Education Reform, et al.	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Christian Legal Society, et al.	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Forge Youth Mentoring	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Freedom From Religion Foundation, et al.	November 13, 2019	The Montana Supreme Court's decision should be affirmed.
Georgia Goal Scholarship Program, Inc.	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Liberty Justice Center and American Federation for Children	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Independence Institute	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Jerry and Kathy Armstrong, et al.	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Jewish Coalition for Religious Liberty	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Justice and Freedom Fund, et al.	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Montana Family Foundation	September 18, 2019	The Montana Supreme Court's decision should be reversed.
The Rutherford Institute	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Rusty Bowers, Speaker of the Arizona House of Representatives, et al.	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Senators Steve Daines, et al.	September 18, 2019	The Montana Supreme Court's decision should be reversed.
United States government	September 18, 2019	The Montana Supreme Court's decision should be reversed.
131 current and former state legislators	September 18, 2019	The Montana Supreme Court's decision should be reversed.
Montana Constitutional Convention Delegates	November 14, 2019	The Montana Supreme Court's decision should be affirmed.
Montana-Northern Wyoming Conference, United Church of Christ	November 14, 2019	The Montana Supreme Court's decision should be affirmed.
State of Maine	November 14, 2019	The Montana Supreme Court's decision should be affirmed.
American Federation of Teachers, et al.	November 15, 2019	The writ of certiorari should be dismissed. If not, the Montana Supreme Court's decision should be affirmed.
Baptist Joint Committee for Religious Liberty, et al.	November 15, 2019	The Montana Supreme Court's decision should be affirmed.
States of Colorado, et al.	November 15, 2019	The Montana Supreme Court's decision should be affirmed.
Montana Association of Rabbis	November 15, 2019	The Montana Supreme Court's decision should be affirmed.
National Disability Rights Network, et al.	November 15, 2019	The Montana Supreme Court's decision should be affirmed.
National School Boards Association, et al.	November 15, 2019	The Montana Supreme Court's decision should be affirmed.
Public Funds Public Schools	November 15, 2019	The Montana Supreme Court's decision should be affirmed.
Religion Law Scholars	November 15, 2019	The Montana Supreme Court's decision should be affirmed.
Religious and Civil-Rights Organizations, Americans United for Septemberaration of Church and State, et al.	November 15, 2019	The Montana Supreme Court's decision should be affirmed.
Tennessee Education Association	November 15, 2019	The Montana Supreme Court's decision should be affirmed.

Outcome

The U.S. Supreme Court reversed and remanded the Montana Supreme Court's ruling in a 5-4 opinion, holding the application of Article X, Section 6 of the Montana Constitution violated the free exercise clause of the U.S. Constitution. The majority held that the application of Article X, Section 6 was unconstitutional because it barred religious schools and parents who wished to send their children to those schools from receiving public benefits because of the religious character of the school.

Chief Justice John Roberts delivered the majority opinion. Justice Clarence Thomas filed a concurring opinion, joined by Justice Neil Gorsuch. Justices Samuel Alito and Gorsuch each filed separate concurring opinions. Justice Ruth Bader Ginsburg dissented, joined by Justice Elena Kagan. Justice Stephen Breyer also dissented, joined by Justice Kagan as to Part I. Justice Sonia Sotomayor also filed a dissenting opinion.

Opinion

In his opinion, Chief Justice Roberts applied precedent from Trinity Lutheran Church of Columbia v. Comer (2017), holding that disqualifying recipients from a public benefit because of their religious character inhibited the recipients' free exercise of religion. He also wrote that the application of Article X, Section 6 (referred to as the "no-aid provision") to exclude religious schools from receiving the tax credit amounted to discrimination on the basis of religious status.

The chief justice wrote:

“	Disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny.” ... Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. This is apparent from the plain text. ... To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges “inevitably deters or discourages the exercise of First Amendment rights.” Trinity Lutheran, 582 U. S., at ___ (slip op., at 11) (quoting Sherbert v. Verner, 374 U. S. 398, 405 (1963) (alterations omitted)). The Free Exercise Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqualifying the religious from government aid as Montana did here.	”
—Chief Justice Roberts

The chief justice also wrote that Locke v. Davey (2004), which held that the State of Washington could prohibit students from using state scholarships to pursue theology degrees, did not apply in this case. Espinoza, unlike Locke, lacked a "historic and substantial" tradition against providing aid to religious schools.

The chief justice wrote:

“	Locke differs from this case in two critical ways. ... Davey “was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.” ... By contrast, Montana’s Constitution does not zero in on any particular “essentially religious” course of instruction at a religious school. Rather, as we have explained, the no-aid provision bars all aid to a religious school “simply because of what it is,” putting the school to a choice between being religious or receiving government benefits. Trinity Lutheran, 582 U. S., at ___ (slip op., at 12). At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefits. Second, Locke invoked a “historic and substantial” state interest in not funding the training of clergy ... But no comparable “historic and substantial” tradition supports Montana’s decision to disqualify religious schools from government aid.	”
—Chief Justice Roberts

The chief justice also wrote that the Montana Supreme Court's ruling that Article X, Section 6 served to separate church and state infringed on the U.S. Constitution's free exercise clause.

The chief justice wrote:

“	A State’s interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.” ... An infringement of First Amendment rights, however, cannot be justified by a State’s alternative view that the infringement advances religious liberty. ... The infringement of religious liberty here broadly affects both religious schools and adherents. Montana’s no-aid provision imposes a categorical ban—“broadly and strictly” prohibiting “any type of aid” to religious schools. ... Montana’s interest in public education cannot justify a no-aid provision that requires only religious private schools to “bear [its] weight.” Ibid. A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.	”
—Chief Justice Roberts

Concurring opinion

Justice Thomas

Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Thomas wrote separately to discuss the U.S. Supreme Court's interpretation of the Establishment Clause, which he argued "continues to hamper free exercise rights," and was "unmoored from the original meaning of the First Amendment."

Justice Thomas wrote:

“	As in all cases involving a state actor, the modern understanding of the Establishment Clause is a “brooding omnipresence,” Southern Pacific Co. v. Jensen, 244 U. S. 205, 222 (1917) (Holmes, J., dissenting), ever ready to be used to justify the government’s infringement on religious freedom. ... The modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood, the Establishment Clause does not prohibit States from favoring religion. They can legislate as they wish, subject only to the limitations in the State and Federal Constitutions.	”
—Justice Thomas

Justice Thomas arote that the court's approach to the Establishment Clause impacted its free exercise jurisprudence. He provided three examples, including Locke v. Davey:

“	Under this Court’s current approach, state and local governments may rely on the Establishment Clause to justify policies that others wish to challenge as violations of the Free Exercise Clause. Once the government demonstrates that its policy is required for compliance with the Constitution, any claim that the policy infringes on free exercise cannot survive. ... Locke incorrectly interpreted the Establishment Clause and should not impact free exercise challenges. ... [Yet] governments continue to rely on Locke’s improper understanding of “antiestablishment interests” to defend against free exercise challenges.	”
—Justice Thomas

Justice Thomas concluded by arguing that the court's Establishment Clause interpretation "thwarts, rather than promotes, equal treatment of religion."

“	This interpretation of the Establishment Clause operates as a type of content-based restriction on the government. ... Historical evidence suggests that many advocates for this separationist view were originally motivated by hostility toward certain disfavored religions. ... So long as this hostility remains, fostered by our distorted understanding of the Establishment Clause, free exercise rights will continue to suffer.	”
—Justice Thomas

Justice Alito

Justice Alito filed a concurring opinion examining the origins of the original Blaine Amendment, which failed in the U.S. House in 1876, and similar amendments added to state constitutions thereafter.

Justice Alito wrote:

“

The provision’s origin is relevant under the decision we issued earlier this Term in Ramos v. Louisiana ... I argued in dissent that this original motivation, though deplorable, had no bearing on the laws’ constitutionality because such laws can be adopted for non-discriminatory reasons, and “both States readopted their rules under different circumstances in later years.” Id., at ___ (slip op., at 3). But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here.

”

Justice Alito wrote that the inclusion of Blaine Amendments in state constitutions should be understood in the context of anti-Catholic sentiment expressed at the time. He disagreed that the 1972 Montana Constitutional Convention cleared Article X, Section 6 of this sentiment: "The no-aid provision’s terms keep it '[t]ethered' to its original 'bias,' and it is not clear at all that the State 'actually confront[ed]' the provision’s 'tawdry past in reenacting it.'"

Justice Gorsuch

Justice Gorsuch filed a concurring opinion, writing separately to question whether the majority should have characterized Montana's actions as discrimination on the basis of religious status. Gorsuch wrote that Montana discriminated against the plaintiffs not only on the basis of religious status, but also on the basis of religious activity.

Justice Gorsuch wrote:

“	The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly. ... So whether the Montana Constitution is better described as discriminating against religious status or use makes no difference: It is a violation of the right to free exercise either way. ... Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.	”
—Justice Gorsuch

Dissenting opinion

Justice Ginsburg

Justice Ginsburg filed a dissenting opinion, joined by Justice Kagan. Justice Ginsburg disagreed with the plaintiffs' argument that the application of Article X, Section 6 violated their First Amendment rights. She wrote that no violation occurred because the Montana Supreme Court decided to strike down the entire tax credit scholarship program.

Justice Ginsburg wrote:

“	The Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion. ... Accordingly, the Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise. Petitioners may still send their children to a religious school. And the Montana Supreme Court’s decision does not pressure them to do otherwise.	”
—Justice Ginsburg

In a footnote, Justice Ginsburg added:

“	The Montana Supreme Court’s decision leaves parents where they would be had the State never enacted a scholarship program. In that event, no one would argue that Montana was obliged to provide such a program solely for parents who send their children to religious schools.	”
—Justice Ginsburg

Justice Breyer

Justice Breyer filed a dissenting opinion, joined by Justice Kagan as to Part I. Justice Breyer wrote that (1) the majority failed to acknowledge the potential conflict between the free exercise and establishment clauses and (2) this failure risked defeating the purposes of the two clauses altogether.

Justice Breyer wrote:

“	It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke, is what petitioners “‘propos[e] to do—use the funds to’” obtain a religious education. ... The subsidy petitioners demand would go to pay for, among other things, the salaries of teachers and administrators who have been found in at least some instances to so “personify [the] beliefs” of the churches that employ them that they are quite literally “ministers” within the meaning of the First Amendment. Hosanna-Tabor, 565 U. S., at 188. If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom.	”
—Justice Breyer

Justice Breyer also wrote that the majority opinion "burdens courts with the still more complex task of untangling disputes between religious organizations and state governments, instead of giving deference to state legislators’ choices to avoid such issues altogether."

Justice Sotomayor

Justice Sotomayor filed a dissenting opinion. She wrote separately to argue that the majority was both wrong to decide the case and decided it wrongly. Similar to Justice Ginsburg's dissent, Justice Sotomayor wrote that the plaintiffs' First Amendment rights could not have been violated because the Montana Supreme Court struck down the tax credit scholarship program altogether.

Justice Sotomayor wrote:

“	Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the taxcredit program entirely. 393 Mont., at 467–468, 435 P. 3d, at 614. Because no secondary school (secular or sectarian) is eligible for benefits, the state court’s ruling neither treats petitioners differently based on religion nor burdens their religious exercise. ... It appears that the Court has declared that once Montana created a tax subsidy, it forfeited the right to eliminate it if doing so would harm religion. ... Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.	”
—Justice Sotomayor

Text of the opinion

Read the full opinion here.

Media coverage

See also: Media coverage of and commentary on Espinoza v. Montana Department of Revenue

Coverage of the case before the ruling focused on the impact the case could have on Blaine Amendments and state constitutions, education funding and policy, past legal precedent, and the constitutional clauses from the First and 14th Amendments.

Coverage of the case after the ruling focused on reactions to the ruling, policy changes and legal challenges that could result from the ruling, and the effect the ruling could have on public education funding.

Click here for more information on media coverage of and commentary on Espinoza v. Montana Department of Revenue.

Additional reading

The following list of previously decided Supreme Court cases relate to legal precedents at issue in Espinoza v. Montana Department of Revenue.

• Rucho v. Common Cause, decided June 27, 2019
• Trinity Lutheran Church v. Comer, decided June 26, 2017
• Locke v. Davey, decided February 25, 2004

See also

• 

  Supreme Court cases, October term 2019-2020

• 

  Supreme Court of the United States

• 

  History of the Supreme Court

External links

• Search Google News for this topic
• U.S. Supreme Court docket file - Espinoza v. Montana Department of Revenue (petitions, motions, briefs, opinions, and attorneys)
• SCOTUSblog case file for Espinoza v. Montana Department of Revenue