Espinoza v. Montana Department of Revenue


Montana’s state constitution protects against government funding of religion, but parents of students in private, religious schools want their schools to receive financial benefits through a state funding program. 


BJC supports laws that prohibit government funding of and interference in religion. We filed a friend-of-the-court brief in Espinoza v. Montana Department of Revenue at the U.S. Supreme Court to defend the law’s distinctive treatment of religion.

The unique treatment of religion keeps government from controlling the beliefs and practices that religious schools teach. In Espinoza, the Court is being asked to require that the government provide financial benefits to religious institutions whenever it does for private secular ones. But, BJC says doing so would harm religious liberty because religious education is fundamentally different.

“Religious individuals and institutions, including religious schools, benefit from the law’s distinct treatment of religion,” said BJC General Counsel Holly Hollman. “Both avoiding government sponsorship of religion and preventing government interference with religious practice are central elements of our country’s historic tradition protecting religious liberty.”

As in Trinity Lutheran Church (2017), BJC is defending the distinctive treatment of religion in law and countering the false and damaging narrative that misrepresents the prohibition on government-funded religion.

In Espinoza, parents of students who attend private religious schools challenged a state tax credit program that did not include religious schools. The program provided a dollar-for-dollar tax credit for donations to an entity that pays tuition at private schools. The parents’ case went to the Montana Supreme Court, which struck the program, ruling that the state constitution forbids the creation of a tax credit program that supports private religious schools. Now, the U.S. Supreme Court will decide whether Montana’s decision to restrict such a program violates the Free Exercise Clause of the U.S. Constitution.

“The U.S. Supreme Court has never ruled that the Free Exercise Clause demands government funding of religion,” Hollman said. “To do so would, in effect, re-write state constitutions and upend the way religious liberty is protected.”


The U.S. Supreme Court will hear oral arguments in the case on January 22, 2020. A ruling is expected before the end of June.

From the Brief

“The distinctiveness of religion (not animus toward any particular religion or religion in general) and importance of religious liberty explain its special treatment in our constitutional tradition.”

“A principle of governmental non-interference in religion, particularly non-interference with internal decisions that affect the faith and mission of a church, is a central theme in the protection of religious liberty.”

“The attack on Montana’s no-aid provision as a remnant of ‘naked religious bigotry’ … misrepresents a long tradition of non-interference with religion, undermines the complementary nature of religious liberty provisions in our national and state polity, and disregards the distinctiveness of religion.”

“Petitioners’ demand for a state program for equal funding ignores the distinctiveness of religion and the various ways religious education operates to promote faith formation. It ignores the relationship between support and accountability in public programs and the limits on governmental interference in religion.”


BJC brief (PDF)
Written with Dr. Steven Green and joined by the Evangelical Lutheran Church in America; the General Synod of the United Church of Christ; and the Rev. Dr. J. Herbert Nelson II, as Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.)

BJC news release
Issued November 15, 2019

BJC urges U.S. Supreme Court to continue distinct treatment of religion in the law
BJC Latest News post by Don Byrd

Information on the Trinity Lutheran Church case