The continued educational growth of Americans includes the government’s expressed support of the schooling system via subsidized education schemes. In 2019, the Federal Budget allotted $59.9 billion in discretionary appropriations for the Department of Education. Outlined within the Federal Budget 2019, President Trump stated,
“Parents are the best advocates for their children, and we must expand their access to a wide range of high-quality educational choices, including strong public, charter, magnet, private, online, parochial, and homeschool options. Each child is precious and unique, and we must enable our communities to provide a range of schooling options, which will allow students to thrive and prepare for success in adulthood.'
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By providing financial support to the different tiers of the education system, the federal and state governments have the ability to make schooling more accessible to low-income families and schools more capable of providing a strong education for students. However, this same concept must be analyzed differently in regard to religious-affiliated schools as the government has long operated via a high wall of separation between the church and state as a means to abide by the Free Exercise, Establishment, and Equal Protection Clauses of the U.S. Constitution.
In 2015, the Montana State Legislature enacted a Tax Credit Program that provided a dollar-for-dollar tax credit to taxpayers' donations of up to one hundred and fifty dollars to any Student Scholarship Program within the state. A Student Scholarship Organization is a charity that uses the majority of its donated revenue to provide tuition aid to students attending any Qualified Education Provider that meets the Montana Code requirements in Section 15-30-3102(7); under this section, a qualified education provider is essentially any private school. However, under Article X, Section 6(1) of the Montana State Constitution, the state is prohibited from directly or indirectly providing financial aid to religious-affiliated schools. Therefore, the Montana State Department of Revenue determined the need to add ‘Rule 1’ to the Tax Credit Program which narrowed the definition of a Qualified Education Provider to exclude a religious-affiliated school; the addition of Rule 1 allowed for the overall program to be considered constitutional under the Montana Constitution Article X, Section 6(1) in the eyes of the legislature and the Department of Revenue. Overall, the state had effectively barred any funding from reaching religious-affiliated schools.
The petitioners of this case, known collectively as Espinoza, are mothers of children that attend religious-affiliated schools, and whose children are no longer eligible to receive scholarships for tuition aid under the Tax Credit Program. Together the petitioners sued the Department of Revenue in the District Court to challenge the constitutionality of Rule 1. Espinoza argued Rule 1 violated the Free Exercise Clause of the Montana and United States Constitution because “it indirectly penalized parents for sending their children to religiously-affiliated schools.” However, the respondent claimed that without Rule 1 the entire Tax Credit Program would be unconstitutional because it would have allowed for state funds to indirectly be given to religious-affiliated schools, as public funding is forbidden under the state constitution from being used in the funding of religious-affiliated schools. The District Court ruled in favor of Espinoza, striking Rule 1 because the Tax Credit Program was constitutional as originally enacted in 2015 as the program was not an expenditure of state funds and thus did not trigger Article X, Section 6(1).
The Department of Revenue appealed the ruling to the Montana Supreme Court; this appeal led to the ruling of the District Court being overturned. The Montana Supreme Court held that the Tax Program as a whole was in violation of Article X, Section 6(1) of the Montana Constitution and invalidated the program. The court grounded its ruling in the fact that Article X, Section 6(1) was purposefully written by legislatures to prohibit any use of state funds to aid religious-affiliated schools. The court also found that the Department of Revenue has violated its powers in the creation of Rule 1; and finally, that the inclusion of Rule 1 was unnecessary as the Tax Program as a whole was unconstitutional as it indirectly provided aid to religious-affiliated schools.
Espinoza filed a petition for a writ of certiorari to the U.S. Supreme Court, which was granted on the grounds of the Supreme Court seeking to resolve whether invalidating a religiously neutral, generally available scholarship program, which indirectly provides public funds to religious-affiliated schools, violates the Establishment Clause, Free Exercise Clause, or the Equal Protection Clause of the U.S. Constitution.
The question posed in Espinoza v. Montana Department of Revenue (18-1195) is:
1. Whether it violates the Religion Clauses or the 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 two court doctrines at the heart of this case, the Free Exercise Clause and the Establishment Clause are truly opposites. While the Free Exercise Clause forbids the government from burdening religious practice, the Establishment Clause forbids the government from advancing or endorsing any singular religion. In addition to the religion clauses, there is also the influence of the Fourteenth Amendment’s Equal Protection clause in which all people are treated equally under the law as well as the Blaine Amendment that supports the separation between church and state.
The Free Exercise Clause of the First Amendment as written in the Constitution is, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This clause preserves the right of all American citizens to practice or engage in any religion of their choosing. Additionally, this clause prohibits the government from infringing on an individual's right to take part in their chosen religion. The Supreme Court has found that the only time a law can infringe on the Free Exercise of religion is when said law is legitimate, facially neutral, and advances a legitimate government purpose through an analysis under the strict scrutiny test.
The Establishment Clause is also found within the First Amendment and is derived from the following statement, “Congress shall make no law respecting an establishment of religion…” This refers to the government’s inability to make a law that would endorse one particular religion over another. Questions revolving around the Establishment Clause make recurring appearances in front of the Supreme Court; in the past, the Court has permitted religious invocations to open legislative sessions, public funds to be used for private religious school bussing and textbooks, and university funds to be used to print and publish student religious groups' publications. In comparison, the Court has ruled against overt religious displays at courthouses, state funding supplementing teacher salaries at religious schools, and some overly religious holiday decorations on public or federal land. The Supreme Court uses the Lemon Test in order to determine if a law has violated the Establishment Clause. The test is derived from the 1971 Supreme Court case of Lemon v Kurtzman (403 US 602). A law passes the Lemon Test by abiding by the three requirements: government action must have a completely secular purpose, the effect of the law neither enhances nor inhibits religion, and the law must not foster excessive engagement between the state and religion.
Finally, the third Constitutional doctrine involved with Espinoza v. Montana Department of Revenue is the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause guarantees that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' Therefore, the Equal Protection Clause forces the state and federal government to govern impartially, to not draw distinctions amongst individuals solely because of differences that are irrelevant to achieving a legitimate government purpose. It is for this reason that this clause is used frequently for the furthering and protecting of civil rights and liberties. Due to the Equal Protection Clause involved with Espinoza v. Montana, the Blaine Amendment must be discussed as well. The Blaine Amendment is an article included in thirty-seven state constitution’s across the country, the amendment forbids any state entity from making any direct or indirect appropriation or payment to any sectarian purpose or any religious-affiliated school. Criticizers of the Blaine Amendment claim that it is discriminatory against religion. Now that the court doctrines related to Espinoza v. Montana have been analyzed, the related case precedence can be discussed.
In the District Court hearing, Espinoza referenced Trinity Lutheran Church v. Comer, 582 US _ (2017) as supporting their argument that Rule 1 was a violation of the Free Exercise Clause and that their case was distinguishable from Locke v. Davey, 540 U. S. 712 (2004). Locke v. Davey, 540 U. S. 712 (2004), referenced in the petitioner’s argument holds valid case precedence regarding issues of the First Amendment and scholarship funds. In 1999, the state of Washington established the Promise Scholarship to provide scholarships to talented students; however, this scholarship cannot be used to obtain a degree in theology as the prohibition of funding religious instruction is outlined in Washington’s Constitution. Davey forfeited his Promise Scholarship in order to major in pastoral ministries at a private Christian college; he later sued in district court claiming his right to free exercise had been violated. The Supreme Court ruled against Davey because the state had simply chosen not to fund a distinct category of instruction. The court furthered their argument by supporting the constitutionality of Washington’s amendment which explicitly prohibits state money from going to religious instruction as not violating the free exercise clause as there was no animosity towards religion and the state has a compelling interest in excluding religion from public funding.
Trinity Lutheran Church v. Comer is a more recent decision in which the Supreme Court decided whether the exclusion of churches from an otherwise neutral and secular aid program was a violation of the Free Exercise and Equal Protection Clauses. The Trinity Lutheran Church of Columbia operates a licensed preschool and daycare center, called the Learning Center, this school has an open admission policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources, the DNR, offers a grant program in which qualifying organizations can apply for funding to purchase recycled tires to resurface playgrounds. The Trinity Church applied for said grant and was denied under Article I, Section 7 of the Missouri Constitution which prohibits state money from indirectly or directly funding any church, section, or denomination of religion. The Supreme Court ruled in favor of Trinity, providing that the exclusion of churches from an otherwise neutral and secular aid program was in violation of the First and Fourteenth Amendments. The majority, in this case, ruled in favor of Trinity because the Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion; therefore, the DNR’s policy discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. The Court found that the state’s interest in creating a “wide berth” around religious entanglement concerns was not enough of a compelling interest to burden Trinity.
Finally, a case not mentioned by either party in the suit that has valid precedence is Zelman v. Simmons-Harris 536 US 639 (2002). In the late 90’s Ohio established the Pilot Project Scholarship that provides tuition aid in the form of vouchers for students in the Cleveland City School District, the state allowed for both religious and non-religious schools to participate. The financial aid is distributed to parents and the parents then have the discretion to send their child to any school of their choosing. This resulted in 96% of the participating children within the program attending a religiously-affiliated school; additionally, 60% of the children that benefited from this program were at or below the poverty line. A group of Ohio taxpayers challenged the constitutionality of the program, claiming it violated the Establishment Clause. The Supreme Court upheld the constitutionality of the program because the state of Ohio was attempting to provide better education to children; additionally, the court found that the aid to religious-affiliated schools was only reaching those schools through the decisions of the parents. The court found that the state was not endorsing any religion nor was the state intentionally funding religious-affiliated schooling. Now that the court doctrines in question, as well as the related case precedence, have been explained, it can be applied to the case currently before the Supreme Court.
In the current case of Espinoza v. Montana Department of Revenue (18-1195), the Supreme Court should rule in favor of Montana for four main reasons. The first reason the Supreme Court should rule in favor of Montana’s case is the recent ruling in Trinity v. Comer that established the exclusion of churches from an otherwise neutral and secular aid program was a violation of the First and Fourteenth Amendments was an incorrect conclusion of the case. The ruling in Trinity v. Comer creates a broad anti-discrimination principle involving government provision of benefits to religious organizations. This new standard will allow for a more direct line of financial assistance from the state to religious organizations, resulting in excessive entanglement between the church and state. Additionally, the Free Exercise Clause allows states to make exceptions to applicable laws based on an organization’s status as religious. The second reason the Supreme Court should rule in favor of Montana is that in the ruling of Locke v. Davey, the court upheld the state’s right to not fund religious teaching as it was a part of their constitution to prohibit all funds from aiding religious-affiliated entities. Therefore, because it is Constitutional for a state constitution to include a provision forbidding the use of public funds to aid religious-affiliated entities, the Supreme Court of Montana was correct in its decision to invalidate the program as the establishment of the Tax Program was in violation of Montana’s own Constitution. States have a historical and compelling interest to exclude religious activity from public funding and maintain a high wall of separation of church and state; therefore, Montana’s constitutional provision is not a violation of the First’s Free Exercise Clause as it only prohibited the government from taking certain action. The third reason the Court should rule in favor of Montana is that this case differs from Zelman v. Harris as the Ohio Constitution does not include a provision that forbids any public funding from reaching a religious entity like Montana’s Constitution does. This precedence shows the U.S. Supreme Court’s cases dealing with the Establishment Clause have held that states should have the power to decide whether to enact school-choice programs that support religious schools. States should also have the power to decide not to enact them which includes the power to bar such programs at the state constitutional level, just like Ohio and Montana. Finally, the Supreme Court should rule in favor of Montana because the Montana Supreme Court did not violate the Equal Protection Clause of the Fourteenth Amendment. In the Montana Supreme Court’s decision to strike down the Tax Credit Program as unconstitutional, Article X, Section 6(1) was applied equally to all private schools, whether sectarian or secular, impacting both religion and nonreligion in the same way as they were all denied aid.
Even though it is the duty of the state and federal governments to provide accessible and quality schooling options; however, they must maintain a high wall of separation between the church and state in regard to financial aid to religiously affiliated schools. Currently, a student’s ability to use state funds for a private, religiously affiliated school depends on the state and wherein the student lives. Espinoza v. The Montana Department of Revenue has the capacity to bring uniformity through the Supreme Court’s ruling. It is, for this reason, it is important for the Court to rule in favor of Montana for four key reasons: the ruling in Trinity v. Comer is too broad and stands to allow for excessive entanglement between the church and state, the Supreme Court of Montana made the correct decision in striking down the Tax Credit Program as it violated the state’s own Constitution that forbids the funding of religious-affiliated schools as supported by Locke v. Davey, the ruling of Zelman v. Harris supports the argument that states have a right to choose how their funding is spent and follow their constitutions, and the denial of aid to private schools was uniform and featured no discrimination against religion.
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