Supreme Court hands victory to Right and religion, compelling taxpayer to fund religious schools in Montana. Roberts votes with majority.

I haven’t read the decision, so I’ll just leave this in passing. But save your approbation for Chief Justice Roberts, for he joined the court’s 5-4 majority, and wrote the opinion that tax money could be used to support religious schools. The Montana Supreme Court had previously struck down a voucher scheme for school funding because that scheme would have given financial aid to religious schools, violating the Constitution. Religious people brought an appeal, requesting funding for private schools that included religious ones (the bulk of Montana’s private schools). Now the Supremes have ruled that the scheme was indeed Constitutional, and Montana can go ahead and tax people, with some of the money going to vouchers for religious schools.

Here’s the summary from SCOTUSblog (click on screenshot):

The first link below goes to the entire opinion:

JudgmentReversed and remanded, 5-4, in an opinion by Chief Justice Roberts on June 30, 2020. Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Alito filed a concurring opinion. Justice Gorsuch filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justice Kagan joined. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined as to Part I. Justice Sotomayor filed a dissenting opinion.

From the Freedom from Religion Foundation, which filed an amicus brief:

In Espinoza v. Montana Dept. of Revenue, the Supreme Court overturned a ruling by the Montana Supreme Court, which held that a neo-voucher school funding scheme violates the “No Aid” to religion clause of the state Constitution. The state court struck down the entire neo-voucher scheme as it applied to all private education, religious and secular. Nearly 90 percent of Montana’s private schools are affiliated with religion. Christian parents, represented by the pro-voucher Institute of Justice, appealed to the U.S. Supreme Court, asking it to declare that No Aid clauses violate the federal Free Exercise Clause of the First Amendment to the U.S. Constitution.

The Supreme Court, in a 5-4 decision written by Chief Justice John Roberts, illogically ruled that religious schools were indeed being singled out.

“A state need not subsidize private education,” the majority judgment states. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

The absurdity of the majority decision is laid bare in a dissenting opinion. Justice Ruth Bader Ginsburg, joined by Justice Elena Kagan, points out that the Montana Supreme Court had made no distinction between religious and nonreligious schools.

“Because Montana’s Supreme Court did not make such a decision — its judgment put all private school parents in the same boat — this court had no occasion to address the matter,” the dissent states. It adds: “The state court struck the program in full. In doing so, the court never made religious schools ineligible for an otherwise available benefit, and it never decided that the Free Exercise Clause would allow that outcome.”

Justice Sonia Sotomayor has a stinging dissent of her own.

“Today’s ruling is perverse,” she writes. “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. [The court] rejects the Religion Clauses’ balanced values in favor of a new theory of free exercise, and it does so only by setting aside well-established judicial constraints.”

To show the absurdity of this ruling, which reinstated the voucher system including religious schools when it didn’t have to reinstate anything, reader Tom cited this paragraph from Gorsuch’s and Thomas’s concurring opinion.

Seriously? “Properly understood, the Establishment Clause does not prohibit States from favoring religion”? The Establishment Clause was put into place to prevent the government from promoting religion and favoring one religion over another. This ruling clearly uses government funds to promote religion in religious schools, and it favors Catholics, who surely run the bulk of Montana’s religious schools.

“They can legislate as they wish”.  There goes the First Amendment, and the noise you hear is the toppling of the long-established but recently-eroding wall between church and state. This is a really, really bad, and importantly bad, decision.  It moves us closer to the theocracy that Trump and his supporters want.

43 thoughts on “Supreme Court hands victory to Right and religion, compelling taxpayer to fund religious schools in Montana. Roberts votes with majority.

  1. And it favors Catholics, which also run the Supreme Court and make law from the bible and ignore the law books and the constitution.

    1. The Constitution is what the Supreme Court says it is. This is why the battle for justices and lower court judges is so important. In recent years, the conservatives have won most of the battles and will win the war should Trump be re-elected. Even if he’s not re-elected, unless a conservative justice dies and the Democrats control the Senate, allowing Biden to appoint a new justice, the conservatives will have won the war in this case as well. The makeup of the federal judiciary will be one of the worst of Trump’s legacies. The conservative agenda will reign for decades, not only in the area of religion, but also in the environment, government regulation of business and social matters. So, if Trump loses, be happy, but don’t get too giddy.

      1. The people writing these majority decision are always the ones bleating that the original intent of the document trumps anything else. Unless it’s inconvenient I guess.

  2. Not good – I guess that ends the recent run of unexpectedly sensible SCOTUS rulings, then.

  3. Presumably, the Montana State legislature can end the voucher program. It is not compelled to provide it, but if it does provide it, it must treat non-religious and religious private schools alike.

    1. Their voucher system has ended, this decision reinstates it. In 2018, the Montana Supreme Court ruled that a school voucher program passed by the legislature in 2015 violated the no-aid clause in the Montana Constitution because it was intended to send money to private religious schools. The Court struck down the entire program.

      One of the points in the dissents was that the whole case was moot because the voucher program didn’t exist anymore. But the Court seemingly wanted to void the ‘no-aid’ Constitutional provision, which 37 states hold, that disallows money to religious schools. This is a big victory for DeVos and her pet voucher issue.

      IMO, public schools should be funded publicly, and all private schools privately. Seems a simple solution.

      1. IMO, public schools should be funded publicly, and all private schools privately. Seems a simple solution.

        I totally agree. And that stops these sorts of issues from coming up.

      2. “IMO, public schools should be funded publicly, and all private schools privately. Seems a simple solution.”

        It’s interesting to note that the program in question wasn’t directly giving state money to private schools. Rather, Montana passed a law giving tax credits to people who donate to organizations that grant scholarships. So, people can choose which organization to donate to. These organizations then choose who receives the scholarships. Then, the recipient of these scholarships chooses which school they want to send their kids to.

        But, yes, I agree it seems SCOTUS decided to reinstate a defunct program.

      3. Also dispel the notion that your are paying tax for schools for your own children. That argument underlies the whole voucher concept, but it is quite false.

        You benefit from public schools in many ways, whether or not your own children attend them – whether or not you have children, for that matter.

      4. AIUI SCOTUS remanded the case back to the state, with the directive to redo the case in light of their (the Supremes’) decision.

        So the State might still review the case and say “yep, in light of the Supremes decision, we find it okay that the government eliminated the entire program fairly, thus there’s no violation here.”

        They’d be taking a big risk if they did that, but I wonder if Roberts would have any appetite for rehearing it in a round 2.


        The decision reminded me of the Colorado baker case. In that one, Roberts tried to thread the needle by saying it’s illegal to discriminate, but in this particular case the state behaved badly. He’s doing basically the same thing here; trying to thread the needle by saying it’s of course legal for the state not to have vouchers at all, but in this particular case the state behaved badly in their decision not to have tax credits.

        This leads me to believe he doesn’t really want to see the case again, because he doesn’t really want to try and balance the liberal and conservative sides of the court on this issue again. I also doubt he wants Sotomayor’s accusation to stick – i.e., he doesn’t want his court being seen as ordering a state to give tax credits for private religious schools when the state would prefer to not give tax credits for any school.

        1. Yes, the MT Supreme Court could just as easily kill the voucher program on the basis that it discriminates between religious and non-religious private schools. I’d be okay with that.

      5. Their voucher system has ended

        It ended because the Montana court said it was illegal, not because the legislature wanted it to end.

        I think the ruling is fine under the US constitution.

  4. Really further setting the stage for pence to take the baton from a tired and disillusioned tRUMP for november. Biden, lincoln project, vote vets ads should callout the current administration, not just tRUMP. Anybody else adraid of this possibility?

    1. I’ve been worrying about Pence since the 2016 election and didn’t see Trump making it through a first term. Trump is ridiculous but ineffective and driven by narcissism more than ideology (though he panders to religionists and racists when it serves him, of course). Pence has a focused agenda and is much more dangerous, IMHO.

      1. Yeah, Pence actually believes that an American Theocracy is desirable; Trump just does whatever his base wants.

        Either way, Trump is a Cult of Personality and Pence is not. Pence is a horrible politician as well. Because of this, I’m not too worried about his future political prospects.

        1. Agreed – my concern was more about Pence taking over mid-term rather than his election under his own candidacy.

  5. This decision will likely be reversed in about 30 years, when the current court is pushing up daisies and the senate and White House have been in Democratic hands for most of that time. Or not.

    1. I think it will be irrelevant a lot quicker than that. Roberts’ statement “A state need not subsidize private education” will be quoted verbatim from this point forward by every State wishing to do away with their tax credits, subsidies, or vouchers to religious schools.

      My hope is that this will have a liberal effect on most states; with the court forcing them into a choice of vouchers for every private school or vouchers for none, I expect many of the states will choose vouchers for none.

      1. I see what you mean. Good point. With that in mind, I agree many of the states will choose vouchers for none. Mainly because they’ll have lot of Nones voting for someone else and filing court cases.

        1. Well lol I’d like to think the nones have that much sway, but I’d say the more likely reason they’d pick ‘vouchers for none’ is budgetary.

            1. I think it’s more likely to go the other way. Now that the no-aid clauses in state constitutions can be ignored, vouchers can be freely handed out for religious schools. The majority of state legislatures are run by Republicans, and with DeVos egging them on there will be little opposition. In 2015 (the most recent numbers I’ve seen) 75% of private school students were enrolled in religious schools.

              Since school vouchers are education dollars that are diverted from public schools to help subsidize the tuition of private and religious schools, budget considerations don’t really come into play.

              1. There should be no public funds going to private schools, especially religious schools. This principle we will have to reclaim at some point.

  6. And Betsy Devos was in the Supreme Court to relish this disastrous ruling. Justice Sotomayer called the ruling “perverse”; that’s about right. For this SCOTUS, religious people are seen as more important than the rest of us. American Theocracy here we come.

  7. Seriously? “Properly understood, the Establishment Clause does not prohibit States from favoring religion”?

    Even if that were true, Montana has its own state constitution, which is what the lower court based its decision on. The statement by Gorsuch and Thomas entirely misses the point.

  8. For those state constitutions that explicitly prohibit this kind of thing (like NJ in the recent refurbish the church in Morristown with taxpayer money which the NJ courts struck down 9-0 (or something like that)), does this ruling affect them as well?

  9. Wow. Nine whole justices yet only eight separate opinions. (Justice Kagan alone did not author an individual opinion.)

    SCOTUS’s First Amendment Religion Clauses jurisprudence is a dog’s breakfast. No one can completely make heads or tails of it (although this decision at least breaks down along the traditional liberal/conservative dichotomy, something that doesn’t always happen, especially in Free Exercise Clause cases).

    Justice Clarence Thomas has some outré views on constitutional interpretation — including, for example, that, despite settled law to the contrary, the Fourteenth Amendment Due Process clause doesn’t actually incorporate the Bill of Rights to apply to the individual states — some of which appear to be shared by Justice Alito.

    1. Ken, what is your opinion regarding the argument that this ruling concerns only government programs that offer aid to private non-religious schools but not to identical programs offered by religious schools?

    2. Thomas seems clearly the most extreme at this point. For him, the BoR doesn’t apply to the states, Roe is wrongly decided there is no right, and now, nothing in the constitution or BoR says states can’t favor religion.
      He’s basically eliminating everything not literally word for word in the Constitution or amendments. He’s somehow come to the conclusion that reading comprehension exercises we teach our kids, in order to find the connotation in the denotation, is a sin when applied to legal documents. I wouldn’t be surprised if “Marbury was wrongly decided” was too far behind.

  10. I have to disagree on this occasion. I think the Supreme court made the correct decision, assuming my understanding of the case is right.

    Before I start on this, I should say that it is my opinion that voucher schemes for education suck and religious schools are a terrible idea.

    Montana had a voucher system to provide public education. These vouchers could be used in religious schools.

    Somebody went to the Montana court claiming the voucher system was unconstitutional. The court agreed and stopped the voucher system.

    The supreme court disagreed and stated the voucher scheme was not unconstitutional. This has the effect of overturning the Montana court’s previous ruling which stopped the scheme and the scheme can therefore start again. The dissenting opinion is fallacious because it conflates the incorrect legal decision made by the Montana court with the policy decision made ny the Montana legislature.

    The voucher scheme was not unconstitutional because it did not favour religious schools, nor did it favour non religious schools. The constitution says

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

    In doesn’t say anything about whether the law is in favour of or against the said establishment of religion. It says no law at all. A voucher scheme for “any school in Montana” is not unconstitutional, whereas a voucher scheme for “any non religious school in Montana” might be unconstitutional.

    My personal opinion is that religious schools are child abuse and they should be banned.

    1. “Montana had a voucher system to provide public education.”

      What does this mean? The voucher system diverted money from public education to subsidize private schools.

      1. It means that, instead of providing public schools, you give parents vouchers to buy education in private schools and the private schools redeem the vouchers with the state government. At least, that’s how I assume it works. The net result is theoretically the same: taxpayers fund education.

        1. But not public education. Taxpayer dollars that would otherwise go to public schools are used to fund private schools. These schools can pick and choose their students, bar anyone they want for any reason, and generally behave like a private club. That’s not public education.

        2. Normally, parents pay school tax to the local public school regardless. A private school is supposed to be separate, so the parent of private students ends up paying double. I suppose this is why the private parent complains.

  11. Some of the dissents opened interesting questions. For instance, Breyer wondered, “…Roberts left open about the limits of today’s ruling – for example, will the state be required to fund religious public schools?”

    If a school district opened a Christian public school, by the logic of this decision there could be no argument against it. After all, states don’t have to offer secular public schools, but if they do they can’t bar religious public schools.

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