Bloomberg Law
Jan. 22, 2020, 5:46 PM

Religious-School Aid Divides U.S. Supreme Court Justices (1)

Greg Stohr
Greg Stohr
Bloomberg News

U.S. Supreme Court justices signaled a sharp divide in a Montana case that could make it easier to funnel public money to religious schools and other faith-based organizations.

With Chief Justice John Roberts in his customary center seat, the court heard arguments a mere eight hours after he finished presiding over the first day of President Donald Trump’s Senate impeachment trial. The trial resumes Wednesday at 1 p.m.

The Montana Supreme Court struck down a taxpayer-funded scholarship program that was used primarily to help send children to religious schools, ruling that it violated a state constitutional provision. The ruling is being challenged by three mothers seeking to use money from the program to send their children to a Christian school.

Roberts is likely to cast the pivotal vote. His questions suggested he might back the parents and revive the scholarship program, though he directed queries at lawyers on both sides.

The chief justice made no mention of his new second job, conducting the hour-long session much as he usually does. He interrupted Justice Sonia Sotomayor during an especially long question to give a lawyer a chance to answer. Roberts later drew a laugh when he recommended that another lawyer answer Justice Stephen Breyer’s question despite Breyer’s suggestion that the attorney could ignore it.

Sotomayor and other liberal justices questioned whether the mothers had any grounds to complain given that the entire program has been thrown out. Justice Elena Kagan said they were “in the same boat” as the parents of children in non-religious private schools.

“There is no discrimination at this point going on, is there?” she asked.

Anti-Catholic Bias

The 2015 scholarship program gave individuals and corporations a tax credit for contributing up to $150 a year to an organization that funds scholarships to help needy students attend private schools.

The parents sued after the Department of Revenue issued a rule that barred use of scholarship money at religious schools. A trial judge blocked that rule, before the Montana Supreme Court went further and threw out the entire program.

The Supreme Court’s conservatives questioned the legality of the Montana constitutional provision that formed the basis of the state court ruling. The provision, which bars aid to churches and religious schools, was originally adopted in 1888.

Justice Brett Kavanaugh pointed to the anti-Catholic bias that proliferated at the time, saying that sentiment drove many states to adopt similar provisions.

“They’re certainly rooted in grotesque religious bigotry against Catholics,” Kavanaugh said. Montana officials say the provision was re-adopted in 1972 for legitimate reasons.

Swimming Pools

Roberts suggested the Montana court ruling was akin to a governmental decision to close its swimming pools because too many black people were using them.

“How is that different from religion?” he asked the state’s lawyer.

Montana officials say the state court was right to invalidate the entire program if any of the money would go to religious schools. The state Department of Revenue says more than 90% of the scholarships went to students attending religious schools.

The only organization formed under the law, Blue Sky Scholarships, supports just one non-religious school along with 12 religious schools, the state says. Big Sky awarded 54 scholarships during the most recent school year, totaling $27,000.

Almost 20 states have similar scholarship programs, according to a filing in the case by school-choice advocates.

The court will rule by June in the case, Espinoza v. Montana Department of Revenue, 18-1195.

(Updates with excerpts from argument starting in sixth paragraph)

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editors responsible for this story:
Joe Sobczyk at

Laurie Asséo

© 2020 Bloomberg L.P. All rights reserved. Used with permission.