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On The Front Lines

Victory: U.S. Supreme Court Overturns Discriminatory Law Preventing Students From Using Scholarships to Attend Religious Private Schools

WASHINGTON, DC — Rejecting long-standing state laws that discriminate against religion, the 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 states 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 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.

Case History

September 26, 2019 • Rutherford Institute Challenges Discriminatory Law Preventing Students From Using Scholarships to Attend Private Schools With Religious Ties


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