Written by Don Byrd
Last month, a Montana judge ruled in favor of plaintiffs challenging the state’s exclusion of religious schools from a tax credit scholarship program. Now state officials have announced their intention to appeal to the state’s supreme court.
The program, which grants tax credits in return for private school scholarship contributions, prohibited religious schools from participating out of concern for church-state separation. The Montana Constitution specifically forbids the use of public money to fund sectarian education, but the judge ruled that tax credits are not public expenditures barred by the no-aid to religion provision.
Several state constitutions include no-aid to religion provisions (so-called Blaine Amendments) that have been central in the legal disputes over school vouchers in those states. These provisions are a state’s expression of the desire not to financially entangle church and state.
Voucher advocates, however, sound hopeful that rulings in favor of a tax credit approach like Montana’s will undermine the effectiveness of no-aid provisions generally. The Heartland Institute’s Ashley Batemen has this troubling quote, for example, from David Herbst, Director of the Montana chapter of Americans for Prosperity: “We would like to lay this question to rest of whether the Blaine Amendment precludes any amount of school choice whatsoever…”
The U.S. Supreme Court has indicated that its most recent church-state decision may impact school voucher decisions relying on no-aid provisions. In Trinity Lutheran Church v. Comer, the Court found unlawful a state’s exclusion of a church from a grant program, despite a “no aid to religion” provision, and subsequently sent some school voucher cases back to court in light of its ruling.
Will any state’s right to protect church-state separation by denying taxpayer funding to religion be left standing? Montana’s high court may be one of the first to consider a voucher-like program after the Trinity Lutheran Church ruling.