Skip to main content

An affiliate of Wisconsin Manufacturers & Commerce

Espinoza v. Montana Department of Revenue: School Choice & Religious Organizations

This week the United States Supreme Court overturned a Montana Supreme Court ruling that prohibited state funding from going to religious schools via a scholarship fund. Besides its substantive constitutional issues, the case demonstrates the procedural interplay between administrative agencies, state constitutions, and the federal Supreme Court.

In 2015, the Montana Legislature created a program that granted tax credit to anyone who donated to a participating student scholarship organization. The scholarships would then go towards tuition for low-income or disabled students who wished to attend a private school. Any private school that met certain accreditation, testing, and safety requirements could receive the money. (Which almost all schools did.) Majority Opinion at 2.

The Montana Legislature did state in its purpose statement that:

“[T]he legislature finds that the purpose of student scholarship organizations is to provide parental and student choice in education with private contributions through tax replacement programs. The tax credit for taxpayer donations under this part must be administered in compliance with Article V, section 11(5), and Article X, section 6, of the Montana constitution.”

Mont. Code Ann. §15–30–3101

Article X, section 6, of the Montana constitution bars government aid to sectarian schools.

To further this aim, the Montana Department of Revenue (DOR) promulgated a rule prohibiting families from using scholarship money at religious schools. The rule re-defined “qualified education provider”—a term previously and extensively defined by the legislature in the statute—to exclude schools “owned or controlled in whole or in part by any church, religious sect, or denomination.” Mont. Admin. Rule §42.4.802(1)(a) (2015).

DOR claimed it needed to promulgate the rule to comply with the no-aid provision in Article X, section 6.

Three mothers sued DOR over exclusion of religious schools, claiming the rule was not justified under the Montana Constitution and further violated their religious liberties under the federal Constitution.

The case went to the Montana Supreme Court where the court held the scholarships, without the rule excluding religious organizations, violated the Montana Constitution’s no-aid provision. But it also unanimously held DOR exceeded its authority when it promulgated the rule excluding religious organizations since the legislature already defined it and DOR “lacked authority to ‘transform’ that definition with an administrative rule.” Majority Opinion at 6.

The case proceeded to the United States Supreme Court where Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh, wrote the majority opinion. He began by rejecting any Establishment Clause claims and limiting the question before the court to:

“whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program. For purposes of answering that question, we accept the Montana Supreme Court’s interpretation of state law—including its determination that the scholarship program provided impermissible “aid” within the meaning of the Montana Constitution—and we assess whether excluding religious schools and affected families from that program was consistent with the Federal Constitution.

Majority opinion at 7

The majority opinion went on to invalidate the the no-aid provision of Article X, section 6 of the Montana Constitution as a violation of the Free Exercise clause of the First Amendment, highlighting its previous ruling in Trinity Lutheran of Colombia, Inc. v. Comer.

The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations “owned or controlled by a church, sect, or other religious entity.”…

Majority opinion at 10

The majority further added:

Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.


The majority opinion also relied heavily on past practice—noting both the historical context of states providing funding equally to religious schools and case precedent, which:

repeatedly confirm[] the straightforward rule that we apply today: When otherwise eligible recipients are disqualified from a public benefit solely because of their religious character, we must apply strict scrutiny.

MAJORITY OPINION AT 17 (internal citations omitted)

Concurring in the opinion, Justice Thomas, joined by Justice Gorsuch, wrote separately “to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights.” Further arguing,

Until we correct course on [the court’s interpretation of the Establishment Clause], individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom

Thomas concurrence at 1

Justice Alito wrote a concurrence pointing to the origins of Montana’s no-aid provision in Article X, section 6 as blatantly anti-Catholic and modeled on the failed Blaine Amendment to the Constitution of the United States.

Finally, Justice Gorsuch also wrote a concurrence, emphasizing:

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, unless the State can show its law serves some compelling and narrowly tailored governmental interest, conditions absent here for reasons the Court thoroughly explains.

Gorsuch concurrence at 4

Further arguing:

The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways? What does it mean to tell an Orthodox Jew that she may have her religion but may be targeted for observing her religious calendar? Often, governments lack effective ways to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all.

gorsuch concurrence at 6

Justice Ginsburg, joined by Justice Kagan, wrote in dissent, arguing:

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.

Ginsburg dissent at 2

Justice Breyer, joined by Justice Kagan, also dissented, disagreeing with the court’s conclusion that the Free Exercise Clause required (instead of simply permitted) states to provide benefits to religious organizations when it made them available to others. He advocated instead for a judicial case-by-case analysis.

Finally, Justice Sotomyor dissented, stating that since the tax benefit no longer existed (because the Montana Supreme Court invalidated the program), it petitioners could not raise the Free Exercise claim. Further, the case relies to its detriment on Trinity Lutheran Church of Columbia, Inc. v. Comer, which she claims was decided incorrectly.