The Supreme Court ruled on Tuesday that a Montana program that excluded religious schools from a student aid initiative violates religious freedoms protected under the U.S. Constitution.
The 5-4 majority decision, which fell along ideological lines, said that by making state-backed private school scholarships off-limits to parochial schools, the program ran afoul of First Amendment protections for the free exercise of religion, which prohibits the government from treating religious and secular groups differently.
“A state need not subsidize private education,” Chief Justice John Roberts wrote for the majority. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
The court’s four more liberal justices dissented.
At the center of the dispute is a 2015 tax credit program the Montana legislature passed to promote school choice. Under the plan, taxpayers could receive a dollar-for-dollar tax credit by donating up to $150 to organizations that used the donations to award student scholarships to private schools.
But the program clashed with the so-called no aid provision of Montana’s state Constitution. That clause makes it illegal for government entities to give “any direct or indirect appropriation or payment from any public fund or monies” to religious organizations.
In 2018, the Montana Supreme Court ruled 5-2 that the tax credit scheme violated the no-aid provision and struck down the entire scholarship program. This prompted several Montana parents of Christian school students to appeal to the U.S. Supreme Court, arguing that the ruling violated the First Amendment’s free exercise clause.
In their majority decision Tuesday, the justices reversed the Montana Supreme Court ruling, finding its application of the state’s no-aid provision unconstitutional.
Katherine Franke, a law professor at Columbia University, said the decision reflected an interpretative approach that has been advanced by religious conservatives over the past two decades.
“This position seeks to frame a state's efforts to maintain a wall of separation between public and religious entities as a form of discrimination against religious entities,” said Franke, who serves as faculty director of Columbia University’s Law, Rights, and Religion Project.
Two of the court’s more conservative justices -- Clarence Thomas and Neil Gorsuch -- would have gone even further to advance religious rights at the state level.
In a concurring opinion, Thomas argued that the court’s current treatment of the First Amendment’s Establishment Clause, which functions as a sort of counterweight to the free exercise clause, unduly interferes with states’ ability to support religious activities.
“So long as this hostility remains, fostered by our distorted understanding of the Establishment Clause, free exercise rights will continue to suffer,” Thomas, joined by Gorsuch, wrote.
In a fiery dissent, Justice Sonia Sotomayor accused the majority of using Montana’s defunct scholarship program to supply an overly broad reading of the free exercise clause.