Written by Don Byrd
A decision by the Montana Supreme Court in December of last year, striking down a tuition tax credit program as unconstitutional because it included religious schools, may be headed to the U.S. Supreme Court. The Institute for Justice in its petition, claims that the decision, which relies on a provision of the Montana Constitution, runs counter to the religious freedom guarantees of the First Amendment by barring religious choices from otherwise neutral student-aid programs.
Article X, Section 6 of the Montana Constitution prohibits government from providing funds, directly or indirectly, to any school that is controlled by a church or denomination. Such “no aid to religion” provisions are common in state constitutions as a means of protecting the separation of church and state, but have come under fire from some advocates for taxpayer funding of religion. To exclude religion, they argue, is discriminatory in violation of the Free Exercise clause. Most recently, those arguments have gained traction from the Supreme Court’s ruling in Trinity Lutheran Church.
In Trinity Lutheran Church, the Supreme Court ruled unconstitutional the exclusion of houses of worship from a state grant in Missouri to refurbish playgrounds, despite a similar state provision barring aid to religion. That ruling seemed narrowly drawn to it specific facts, but cases like the Montana tax credit dispute and others winding their way through courts are seeking to test the limits of that decision’s reach.
As for this case, the Montana Supreme Court addressed the Free Exercise concern this way:
Although there may be a case where an indirect payment constitutes “aid” under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases. We recognize we can only close the “room for play” between the joints of the Establishment and Free Exercise Clauses to a certain extent before our interpretation of one violates the other.
The Montana decision appeared to leave room for a scholarship program that restricted the use of funds to only secular purpose, but noted that the program in question lacks any such mechanism. The U.S. Supreme Court is expected to decide whether to take the case by the end of June. Stay tuned.