Supreme Court Hears Religious Schools Case

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by David Nussman  •  •  January 24, 2020   

US bishops issue statement backing school choice

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WASHINGTON ( - The U.S. Supreme Court is considering a case with big implications for Catholic schools and school choice programs.

The justices heard oral arguments Wednesday in Espinoza v. Montana Department of Revenue. The case involves a program in Montana that once allowed residents to get a tax credit for donating to scholarship organizations that help K-12 students at private schools.

The program was eventually eliminated on the grounds that faith-based schools should not get taxpayer funding.

The U.S. Conference of Catholic Bishops (USCCB) weighed in on the case in a statement Tuesday, supporting the right for students at religious schools to benefit from the program.

The chairmen of two USCCB committees, Bp. George Murry of Youngstown and Bp. Michael Barber of Oakland, said in the statement, "The case before the Supreme Court today concerns whether the Constitution offers states a license to discriminate against religion. Our country's tradition of non-establishment of religion does not mean that governments can deny otherwise available benefits on the basis of religious status."

Bp. George Murry of Youngstown

Last September, the U.S. bishops filed an amicus curiae (friend-of-the-court) brief, calling on the nation's highest court to uphold the scholarship tax credit program. Montana lawmakers passed the policy in 2015.

Many faith-based schools qualified for the program, which opponents said violated a clause in the state constitution prohibiting tax money for religious organizations.

Montana's Department of Revenue decided to remove religious schools from the tax credit scholarship program. This severely limited the program's reach, since about two-thirds of private schools in Montana are religiously affiliated.

In 2018, the Montana Supreme Court eliminated the program entirely on the grounds that it was unconstitutional. It was appealed to the U.S. Supreme Court.

Montana, like most states, has a so-called Blaine Amendment — an amendment to the state constitution blocking government funds from going to religious schools.

'Non-establishment of religion' does not mean governments can deny otherwise available benefits on the basis of religious status.

Opponents of Blaine Amendments claim the policies were rooted in 19th-century anti-Catholic bigotry, and were targeted at Catholic schools to ensure they did not get taxpayers' money.

The USCCB's statement claimed Blaine Amendments "were never meant to ensure government neutrality towards religion, but were expressions of hostility toward the Catholic Church."

Bp. Michael Barber of Oakland

In 2017, the U.S. Supreme Court ruled in favor of a Lutheran preschool that was prohibited from participating in a Missouri recycling program. The high court determined that blocking a religious school from the program, specifically for being a religious school, violated the First Amendment since the school would have needed to renounce its religious character to partake in the program.

But there are doubts as to whether that 2017 ruling counts as precedent for the current case. A footnote in that ruling stated it was limited in its scope.

Those who support the Montana program have argued it benefits students' parents directly, and benefits religiously-affiliated schools only indirectly.

Often cited to defend this line of reasoning is Zelman v. Simmons-Harris, a 2002 Supreme Court ruling that upheld a tuition aid program for private school students in Ohio.

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