Written by Don Byrd

Today the Montana Supreme Court ruled unconstitutional a state scholarship tax credit program because it provides aid to religious schools in violation of the state constitution in Article X, Section 6.  Montana’s scholarship program, the court noted overwhelmingly goes to support religious school tuition and the program provides no means of protecting against funding religion.

Here is an excerpt from the opinion:

There is simply no mechanism within the Tax Credit Program itself that operates to ensure that an indirect payment of $150 is not used to fund religious education in contravention of Article X, Section 6. The Department, in administering the Tax Credit Program . . . has no ability to ensure that indirect payments are not made to religious schools. Or, as this Court has previously cautioned, there is no mechanism within the Tax Credit Program to identify “where the secular purpose end[s] and the sectarian beg[ins].” . . . . Because the Tax Credit Program does not distinguish between an indirect payment to fund a secular education and an indirect payment to fund a sectarian education, it cannot, under any circumstance, be construed as consistent with Article X, Section 6.

The Court rejected the argument of plaintiffs that the First Amendment’s Free Exercise clause requires the aid for religious school tuition to be permitted, an argument that echoes the U.S. Supreme Court’s troubling ruling in Trinity Lutheran Church. There, the Court held that a state must provide religious entities access to neutral government grant programs, even if state law prohibits aid to religion.

Many church-state observers are watching for the impact of the Trinity Lutheran Church opinion on other cases involving state provisions barring aid to religion. Here, however, the Montana Supreme Court determined this is “not one of those cases” in which aid prohibited by the state’s no aid to religion provision is required by the First Amendment. In fact, the Court struck down the entire tax credit program, rendering unnecessary a state rule barring religious schools from participating.

You can read the opinion, which split the court 5-2, at this link. Dissenting judges described the program as neutral toward religion and argued that students and parents, and not religious schools, are the beneficiaries of the program.

The plaintiffs have announced they intend to appeal to the U.S. Supreme Court. Stay tuned.