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Supreme Court Seems Ready to Allow Some State Aid to Religious Schools

Supreme Court Seems Ready to Allow Some State Aid to Religious Schools

WASHINGTON — The Supreme Court on Wednesday seemed poised to rule that states may not exclude religious schools from state programs that provide scholarships to students attending private schools.

Chief Justice John G. Roberts Jr., looking none the worse for wear following a late night presiding over the impeachment trial of President Trump, seemed to be searching for a limiting principle, one that would allow the scholarships but stop short of requiring state support for religious education in other contexts. Justice Stephen G. Breyer, a member of the court’s liberal wing, asked questions along the same lines.

The case concerns a Montana program enacted in 2015 “to provide parental and student choice in education.” The program was financed by private contributions eligible for tax credits, and it provided scholarships to students in private schools.

In Montana, that meant religious schools: 12 of the 13 schools that participated in the program were religious, and one was a school for children with disabilities. In one year, 94 percent of the scholarships went to religious schools.

Soon after the program started, a state agency said students attending religious schools were not eligible in light of a provision of the state’s Constitution that bars the use of government money for “any sectarian purpose or to aid any church, school, academy, seminary, college, university or other literary or scientific institution, controlled in whole or in part by any church, sect or denomination.”

Three mothers with children at Stillwater Christian School, in Kalispell, Mont., sued, saying that provision of the state Constitution violated the protections of religious freedom guaranteed by the First Amendment of the United States Constitution.

The Montana Supreme Court ruled against them, shutting down the entire program for all schools, religious or not.

In 2017, in Trinity Lutheran Church v. Comer, the Supreme Court ruled that Missouri had violated the First Amendment by barring religious institutions from a state program to make playgrounds safer, even though the state’s Constitution called for strict separation of church and state.

“The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution,” Chief Justice Roberts wrote for the majority.

At the same time, writing for four justices, Chief Justice Roberts emphasized the narrowness of the court’s decision. “This case involves express discrimination based on religious identity with respect to playground resurfacing,” he wrote. “We do not address religious uses of funding or other forms of discrimination.”

A 2004 Supreme Court decision, Locke v. Davey, allowed Washington State to offer college scholarships to all students except those pursuing degrees in devotional theology. That case involved direct support for religion, Chief Justice Roberts wrote in 2017. Playgrounds, he argued, were a different matter.

The program at issue in the Montana case, Espinoza v. Montana Department of Revenue, No. 18-1195, involves elements of religious instruction, but it does not concern a targeted exclusion of state support for vocational religious instruction.

Several justices focused on a curious element of the case. The Montana Supreme Court struck down the entire program and so it is not obvious that it discriminated against religious groups.

“I am having trouble seeing where the harm in this case is,” Justice Elena Kagan said. “There is no discrimination at this point going on.”

No one contends that the state was required to enact the program in the first place. But the justices appeared to be divided about whether the state court was free to strike it down based on the State Constitution’s prohibition of government aid to religion.

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