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.

“States should not have to fund religious schools,” said BJC General Counsel Holly Hollman. “Religion is treated in a unique way in constitutional law, both to avoid its establishment by government and to avoid government interference in its free exercise. This special treatment of religion stems from our country’s deep and abiding commitment to religious liberty for all.”

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 Supreme Court has long recognized that government may not directly fund religious exercise,” Hollman said. “So it is neither surprising nor discriminatory that Montana’s constitution, like those in other states, protects religious liberty by avoiding even the indirect funding of religion. No-aid provisions ensure that state funds are preserved for state purposes and not used to advance religion. The Court should reject blanket attacks on no-aid provisions and uphold Montana’s law that preserves public funding for its public schools.”



In a 5-4 decision released on June 30, 2020, the U.S. Supreme Court widened the door for problematic government efforts that would fund religious schools. 

“We are disappointed that the Court extended its holding in Trinity Lutheran today,” said BJC General Counsel Holly Hollman. “The decision’s high concern for equal treatment of religious schools disregards the distinctiveness of religion in our constitutional order and contradicts the special treatment that religion rightfully receives to keep government from influencing and interfering with it.” Read her entire statement here.

The U.S. Supreme Court heard oral arguments in the case on January 22, 2020 (read highlights here). 

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.”


What’s “the use” of the Constitution’s distinctive treatment of religion if it is disregarded as discrimination?
SCOTUSblog symposium analysis by Holly Hollman

Statement: Supreme Court’s Espinoza decision disregards distinctiveness of religion
Response to Supreme Court’s June 30, 2020, decision

Supreme Court issues troubling decision in religious school funding case
Latest news update by Don Byrd

PODCAST on the decision in Espinoza v. Montana Dept. of Revenue
Released July 9, 2020

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.)

Podcast: Supreme Court case on gov’t funding of religion
With BJC General Counsel Holly Hollman and Executive Director Amanda Tyler (Feb. 27, 2020)

Protecting religious freedom does not demand state funding of religion
By BJC General Counsel Holly Hollman for The Hill

BJC news release on argument day
Issued January 22, 2020

Supreme Court should protect religious liberty by guarding against government funding of religion
By BJC General Counsel Holly Hollman for Baptist News Global

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