BJC urges U.S. Supreme Court to continue distinct treatment of religion in the law

by | Nov 21, 2019

Many state constitutions protect religious liberty by explicitly barring the government from funding religious institutions. That prohibition keeps the state from meddling with religion, and it means that taxpayers aren’t forced to fund religious activity. In January, the U.S. Supreme Court will hear oral arguments in a case that asks whether enforcing such a provision in Montana unconstitutionally discriminates against religion by denying funding to religious institutions that is available to secular institutions.

In a brief filed with the Court in Espinoza v. Montana Dept. of Revenue, BJC argues in favor of upholding Montana’s decision not to allow a tuition tax credit to be used for religious education in light of the state’s constitutional ban on such funding. Religion, the BJC brief explains, has always and appropriately been treated distinctively under the law. Restricting taxpayer coffers from funding religion is as an important and long-standing example of that distinctive treatment that preserves institutional distance between church and state, an arrangement that works to the benefit of both.

Here is an excerpt from the BJC brief, which was written with law professor Steven Green:

Montana’s constitution reflects the state’s interests in respecting the distinctive nature of religious education, avoiding interference in religious schools, and protecting its state funding resources for public education. It ensures public accountability for education and avoids entanglement with religion.

Religious education and public education are fundamentally different enterprises. Montana’s prohibition on indirect aid to religious entities should be respected in order to maintain adequate distance between the state and religious institutions. This Court should reject Petitioners’ effort to dismiss fundamental religious liberty protections as “bigotry” and respect Montana’s “authority to safeguard individual rights above and beyond the rights secured by the U.S. Constitution”.

In Trinity Lutheran Church (2017), the Supreme Court ruled that a similar provision in Missouri law could not be used to deny a church a playground refurbishment grant. But as the BJC brief notes, that decision was narrowly focused on the issue of playground safety. “Importantly,” the brief notes, “the Court did not hold [in Trinity Lutheran Church] that states are required to fund the building of churches or to fund explicitly religious activity conducted through churches, religious schools, or other religious institutions.”

Indeed, as BJC General Counsel Holly Hollman points out, the Supreme Court “has never ruled that the Free Exercise Clause demands government funding of religion. To do so would, in effect, re-write state constitutions and upend the way religious liberty is protected.”

For more on this case, see the BJC case resource page and my previous posts, in Featured Resources below.