US Supreme Court agrees to hear Montana school choice case

The U.S. Supreme Court has agreed to hear a case addressing the question of whether states can deny tax credit programs to parents and children who choose religious private schools.

"States cannot base laws on hostility to religion. Likewise, no provision of Montana's constitution can enshrine hostility to religion into state law. We commend the Supreme Court for taking this case," Alliance Defending Freedom Senior Counsel John Bursch said in a June 28 statement.

The case, Espinoza v. Montana Department of Revenue, was decided 5-2 in the Montana Supreme Court late last year.

The ruling found that the state's tax credit program, which provided for a dollar-for-dollar tax credit for a person's donation to nonprofit student scholarship organizations, permitted the Montana legislature to "indirectly pay tuition at private, religiously-affiliated schools" in violation of state law.

The Montana Supreme Court concluded that the tax credit program violated the Establishment Clause of the Constitution, and that the Montana state constitution was even stricter in this regard than the U.S. constitution.

On June 28 the Supreme Court granted cert, meaning it will review the case when the new term begins in October.

Bursch cited a Supreme Court case from 2017, Trinity Lutheran Church of Columbia Inc. v. Comer, which ruled that a church-owned playground can be eligible for a public benefit program. The state's natural resources department ultimately ruled the church ineligible for the program because of its religious status, but the Supreme Court ruled that the denial of the church's eligibility for the program violated the free exercise clause.

"As the U.S. Supreme Court unequivocally reaffirmed in that decision, states cannot impose 'special disabilities on the basis of religious views or religious status,'" he said.

reported in March on a proposed federal tax credit-based scholarship program could provide a boost for parents who want to send their children to Catholic school. The proposed scheme, which U.S. Department of Education calls Education Freedom Scholarships, would be funded through taxpayers' voluntary contributions to state-identified Scholarship Granting Organizations. Should the propsal become law, donors will receive a federal tax credit equal to their contribution.

According to the education department, the tax credit program could mean "a historic investment in America's students, injecting up to $5 billion yearly into locally controlled scholarship programs that empower students to choose the learning environment and style that best meets their unique needs."

The National Catholic Educational Association, which includes more than 150,000 educators serving 1.9 million Catholic school students across the U.S., is supportive of the plan.

A similar plan was considered earlier this year at the state level in Nebraska. That bill ultimately succumbed to filibuster in May.

The Second Vatican Council's 1965 declaration on Christian education, Gravissimum educationis, said that parents "must enjoy true liberty in their choice of schools."

"Consequently, the public power, which has the obligation to protect and defend the rights of citizens, must see to it, in its concern for distributive justice, that public subsidies are paid out in such a way that parents are truly free to choose according to their conscience the schools they want for their children."

• Catholic Schools