By Rod Maggay

Policy Summary: On June 30, 2020 the United States Supreme Court handed down its decision in the case Espinoza v. Montana Department of Revenue. In that case, Montana established a scholarship program where residents could gain a maximum $150 tax credit for donations they make to organizations that give scholarships that can be used for tuition at private schools. However, Montana had a state constitutional provision that barred government aid and funds to be used at private schools “controlled…by any church, sect or denomination.” The tuition could still have been used at schools or academies that had no religious affiliation. As a result of this state constitutional provision Montana’s Department of Revenue implemented a rule blocking use of the scholarship money at religious schools. Three mothers who had applied for the scholarship were subsequently blocked from using the monies at Stillwater Christian School in Montana. The families brought suit in state court where the plaintiffs prevailed. The case was appealed to the Montana State Supreme Court, which reversed on the grounds that the monies from the state scholarship program violated the Montana state constitution because state taxpayer monies were used to aid religious schools. The court further invalidated the entire scholarship program. The case was then appealed to the U.S. Supreme Court which decided 5 – 4 that Montana’s constitutional no – aid provision discriminated against religious schools and families in violation of the U.S. Constitution’s Free Exercise Clause.

The Free Exercise Clause in the First Amendment of the U.S. Constitution states “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” LEARN MORE

Policy Analysis: The decision by the Supreme Court was disappointing although not unexpected. With the five vote conservative majority on the court now it was accepted that a number of decisions would be decided in line with conservative interests. However, this case raised a number of eyebrows at how this conservative majority went to great lengths to reach the decision they wanted.

The Free Exercise Clause has come to stand for the notion that persons are protected from “indirect coercion or penalties on the free exercise of religion.” What that means is that the government may not place a burden on how a person worships or in what religious beliefs they choose to follow. With that in mind, Justice Ruth Bader Ginsburg takes the majority opinion to task and states that the inability of the Montana families in the case to use the scholarship money at religious schools does not burden them because they are not being pressured to alter or modify their religious beliefs by the state. Even without the scholarship money they are still free to believe in whatever religious beliefs they choose to follow and can still send their daughters to a religious school of their choosing. The majority opinion thus got it wrong when it said, “availability of benefits [depends on] recipient’s willingness to surrender [its] religiously impelled status.” Montana never forced the parents and families to change their religious beliefs in order to get the scholarship money yet the majority opinion tried to present the case this way.

Additionally, Justice Sotomayor added a much more blistering dissent that raises more questions as to why the majority opinion went down the road it did. Her dissent points out that many of the issues of the case were properly decided by the Montana Supreme Court and that the court had even declined to hear the federal issues connected to the case. Based on past legal precedent this should have been enough for the U.S. Supreme Court to decline to hear and decide the case. What likely happened is that conservative justices on the court wanted to hear the case in order to give a boost to religious rights. And, when analyzing the merits of the case Justice Sotomayor also said the majority opinion got it wrong and puts up a vigorous defense and one of the best explanations for the Free Exercise Clause. She correctly states, “the right to exercise one’s religion [does] not include a right to have the State pay for that religious practice.” Finally, she states that a state that decides to not fund religious activity is not “disfavoring” religion but making a strong choice in remaining secular as the First Amendment Religious Clauses demand. While the conservative justices were likely looking for a way to have religious schools and thoughts flourish in society, Justice Sotomayor’s dissent aptly shows that using state taxpayer money is not the way to go and is clearly against long held constitutional principles.

Simply put, this case represents an unwise choice, from a legal standpoint, to try and put Christian based values front and center in American life at the expense of American taxpayers. That is contrary to the Free Exercise Clause of the First Amendment and the concept of “separation of church and state.” American citizens must continue monitoring the direction of the Supreme Court and hope an opportunity arises where a more secular justice can be appointed in order to give a more traditional meaning to the First Amendment Religious Clauses. LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact

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