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Rejecting long-standing state laws that discriminate against religion, U.S. Supreme Court has ruled that Montana must allow scholarships it provides to be used by families for tuition at religious schools.

The Court’s 5-4 decision in Espinoza v. Mont. Dept. of Revenue found that a state constitutional provision restricting aid to religious institutions violates the First Amendment rights of parents and children when applied to forbid families from using state financial assistance to attend private schools with religious ties.

In an amicus brief filed in Espinoza, The Rutherford Institute pointed out that the school choice restriction was the result of a 150 year-old provision known as a “Blaine Amendment”, which was enacted in an era when anti-Catholic prejudice and nativist opposition to immigration from Ireland and Germany were rampant. Thirty-seven states still have versions of the Blaine Amendments in their Constitutions.

Attorneys Jason P. Gosselin, John M. Bloor, and Joseph P. Connor of Drinker Biddle & Reath assisted The Rutherford Institute in advancing the arguments in Espinoza.

“The First Amendment requires neutrality when it comes to religion,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of “Battlefield America: The War on the American People”.

“In other words, the government may not favor or disfavor one religion over another, nor may it favor or disfavor religion over non-religion, with the reverse holding true, as well. The Constitution establishes a neutral playing field for all viewpoints and requires the government to remain equally impartial. That is the beauty of the Establishment Clause.”

In 2015, the Montana Legislature created a scholarship program for students intended to provide parents with more choices on where their children would attend school. The program fostered this choice by providing individuals and businesses with a tax credit of up to $150 annually for donations made to private organizations that provide scholarships to students who wish to attend private schools; however, the state’s taxing agency ruled that students could not use scholarships at any school “owned or controlled in whole or in part by any church, religious sect, or denomination,” citing the state constitution’s Blaine Amendment as justification.

Kendra Espinoza, a single mother depending on the scholarship funds to offset private school tuition costs, exercised her right to choose the best school for her children by selecting a Christian school whose values she preferred, as opposed to keeping her daughters in public school where they had been bullied.

When her ability to use scholarship funds for the Christian school was cut off, Espinoza sued asserting that the exclusion of religious school from the scholarship program discriminated against religion in violation of the First Amendment to the U.S. Constitution.

Writing for the 5-4 majority, Chief Justice John Roberts noted that states are not required to subsidize private education, “but once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The Supreme Court’s 5-4 opinion and The Rutherford Institute’s amicus brief in Espinoza v. Montana Dept. of Revenue are available at

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

Espinoza v. Montana was brought by three mothers of religious school students from Montana who sought $500 tuition scholarships funded by a state tax credit program.

The Tuesday, June 30 High Court decision was a major victory for parents seeking to educate their children at religious schools. While the Court did not rule that states are required to fund religious education, scholarship programs cannot differentiate between religious and secular private schools.

Chief Justice Roberts wrote the majority opinion. Justices Thomas, Alito, and Gorsuch each wrote concurring opinions. Justice Ginsburg, joined by Justice Kagan, wrote a dissent, as did Justice Breyer (joined in part by Kagan) and Justice Sotomayor.

The Montana Supreme Court cited the so-called “Blaine Amendment” in the state constitution that prohibits state religious schools from receiving state funds. The Blaine Amendment was a failed amendment to the U.S. Constitution that would have prohibited direct government aid to educational institutions that have a religious affiliation.

Named after its original sponsor, Senator James G. Blaine, the amendment was designed to deny government aid to parochial schools, especially those operated by the Catholic Church in locations with large immigrant populations.

When it failed multiple times to be placed on the ballot, several states amended their constitutions to include a similar version, including Montana.

In reversing the Montana Supreme Court, Chief Justice Roberts, wrote, “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious. The Blaine Amendment was born of bigotry and arose at a time of pervasive hostility to the Catholic Church and to Catholics in general. Many of its state counterparts have a similarly shameful pedigree.”

States offering scholarships to students in private schools cannot exclude religious schools from such programs. Montana’s exclusion of religious schools from the tax credit program violated the First Amendment Free Exercise Clause. Now, families who receive education vouchers may apply those vouchers at any school they wish, regardless of its religious affiliation or lack of such an affiliation.

Liberty Counsel founder and Chairman Mat Staver said, “The U.S. Supreme Court made an important ruling that affirms the right of religious freedom to every American. This decision underscores that people of faith should be protected from discrimination, particularly in their decision where to educate their children.

“Faith-based schools make an important contribution to their communities and are part of the foundation of America.”

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