“Play[ing] In the Joints” of the First Amendment: Application of Montana Constitution’s “No Aid” Provision Violates Free Exercise Clause

By: Kristopher L. Caudle*

The First Amendment to the United States Constitution provides two fundamental guarantees for all citizens: The government shall not establish an official religion; and the government shall not infringe upon a citizen’s right to freely exercise their chosen religion. However, the Supreme Court continues to recognize areas where there is ample “room for play in the joints”  between “what the Establishment Clause permits and the Free Speech Clause” requires.  See Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct. 2012 (2017).

This issue is frequently litigated within the context of education law: where the Supreme Court is called upon to determine whether, and to what extent, public funds may be used by parents and students attending private religious schools.

In Espinoza v. Montana Dept. of Rev., 591 U.S. ___, 140 S. Ct. 2246 (2020), the Supreme Court recently held, in a split decision, that the Montana Supreme Court’s reliance on the “no aid” provision of its State Constitution, to invalidate a Montana legislative program providing taxpayer funds for scholarships to private religious schools, violated the First Amendment’s Free Exercise Clause. The Court’s holding now sends the State of Montana back to the drawing board in constructing public aid programs for private schools.

Montana’s Legislature Enacts A Scholarship Program to Benefit Private School Students

In 2015, the Montana legislature enacted a scholarship program to benefit students attending private schools, funded primarily through taxpayer dollars, to be used toward scholarships for tuition at “qualified education providers” under Montana law. See Mont. Code Ann. §§ 15-30-3103 (2019) et seq. The scholarship program also required that the allocation of funds be administered in accordance with the “no aid” provision of Montana’s Constitution.

Article X, Section 6(1), of Montana’s Constitution prohibits governmental entities from making “any direct or indirect appropriation or payment from any public fund or monies….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.”  Mont. Const., Art. X, § 6(1). To reconcile the conflict between the “no aid” provision in Montana’s Constitution and the terms of the scholarship program, the Montana State Department of Revenue implemented an administrative rule (“Rule 1”) which altered the definition of a “qualified education provider” to exclude private religious schools within the State.

Competing Decisions in Montana State Court

Parents of three students enrolled at a private religious school in Montana were denied access to scholarship funds by the application of Rule 1. The parents filed a lawsuit against the Montana Department of Revenue and were awarded a preliminary injunction by a Montana trial court, enjoining the implementation of Rule 1. The Montana Supreme Court reversed the trial court’s decision, upholding the injunction on Rule 1, but striking down the entire scholarship program because its enactment violated the “no aid” provision of the Montana Constitution.

The Supreme Court granted certiorari to address whether application of the “no aid” provision of Montana’s Constitution to invalidate the State’s scholarship program violated the Free Exercise Clause of the First Amendment.

Montana’s Scholarship Program Intersects Both the Establishment Clause and the Free Exercise Clause

Justice Roberts, writing for the Majority, concluded that Montana was free to enact its scholarship program under the Court’s existing Establishment Clause doctrine but that the application of Montana’s “no aid” provision was used to discriminate against parents of private school students simply based on “the religious character of the school” in violation of the Free Exercise Clause. The Majority found the application of Montana’s “no aid” provision indistinguishable with another government program struck down by the Court on Free Exercise grounds in Trinity Lutheran v. Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct 2012 (2017). In Trinity Lutheran, the Missouri legislature allowed pre-schools to apply for grants to renovate playground equipment but excluded sectarian pre-schools from applying for funds. The Trinity Lutheran Court held that Missouri’s government program violated the First Amendment because “disqualifying otherwise eligible recipients from a public benefit ‘solely because of their religious character’ imposes ‘a penalty on the free exercise of religion that triggers the most exacting scrutiny…’”  Therefore, the Espinoza majority reasoned that the blanket exclusion of tuition aid prohibited under the Montana Constitution fell squarely within the precedent set by Trinity Lutheran, and that its application of the “no aid” provision could not survive the application of strict scrutiny.

Challenges by the Dissent

In her dissent, the late Justice Ginsburg challenged the necessity of the Court’s Free Exercise analysis. In her opinion, Supreme Court precedent required that a Petitioner demonstrate how “differential treatment” burdened their religious exercise. Because the Montana Supreme Court’s decision invalidated the scholarship program in its entirety (impacting all private school students, religious and non-religious), in her view, the State’s constitutional violation had been remedied without Supreme Court action.

Another dissent, authored by Justice Breyer, questioned the Majority’s reliance on Trinity Lutheran. Justice Breyer distinguished Espinoza from Trinity Christian, finding the facts in Espinoza closer to the Locke v. Davey, 540 U.S. 712, 124 S. Ct. 1307 (2003).  In Locke, the Supreme Court upheld a Washington State law that “offered taxpayer-funded scholarships to college students” on the condition that they “not pursue degrees that were ‘devotional in nature or designed to induce religious belief.’” The Court reasoned that Washington’s program was permissible under the Free Exercise Clause because the State had chosen not “to fund a distinct category of instruction” that was “essentially religious.” In Justice Breyer’s opinion, like in Locke, the Montana legislature had decided not to fund a scholarship program for a religious education designed primarily to “induce religious faith,” which was quantifiably different than Trinity Christian, where a state decided to exclude a religious pre-school from obtaining funds for improving playground equipment.

Back to Court in Montana

Montana’s state courts and legislature are now left to reconcile the future of tuition assistance programs for parents of private school children in Montana. The Court’s holding in Espinoza makes clear that parents of private religious schools should be on equal footing with parents of non-religious private schools in the receipt of public aid allocated by the State’s legislature. However, as both the majority and the dissent recognized, government funded tuition assistance for private schools is not mandatory under state or federal law, and Montana’s legislature may very well abandon or re-write central provisions of the scholarship program altogether.

For now, Espinoza continues to refine the contours of the Court’s private school-public aid jurisprudence within the joints of the Establishment Clause and the Free Exercise Clause, providing fodder for further experimentation of taxpayer subsidy programs for non-public schools across the country.

* The author is a graduate of the UNC School of Law and former Executive Editor at FALR who practices education law in North Carolina.