The Supreme Court seemed prepared Wednesday to rule that states violate the U.S. Constitution if they prevent religious schools from receiving some state benefits.
During an hour of courtroom argument, the court’s conservatives indicated they were inclined to lower somewhat the wall of separation between church and state. If that’s how the court rules, it could affect laws or constitutional provisions in 37 states that currently bar public funding for schools and churches.
The case involved a Montana program launched in 2015 to provide tax credits for people and businesses that donate to private schools. The organizations that receive the contributions then give financial aid to parents, who decide which private schools their children should attend.
But shortly after it was launched, a state agency barred any of the scholarship money from ending up at religious schools. It cited a provision of the Montana Constitution that prohibits “any direct or indirect appropriation or payment … to aid any church, school … controlled in whole or in part by any church.”
Three mothers from low-income families went to court to challenge the restriction. One of them, Kendra Espinoza, uses the scholarship money to send her two daughters to Stillwater Christian School in Kalispell, holding yard sales to help afford the payments.
The Montana Supreme Court ruled that the scholarship program violated the state Constitution, so it struck down the entire law, eliminating the payments for both religious and secular schools. For that reason, the state’s lawyer told the Supreme Court on Wednesday that there’s no longer any discrimination since all private schools are treated the same.
Richard Komer of the Institute for Justice, representing the mothers, told the court Wednesday that the question “is whether the U.S. Constitution allows the wholesale exclusion of religious schools from a state scholarship program. It does not.”
Some of the court’s liberals wondered what there was to sue about, since the state court eliminated the entire program. “Everyone’s now in the same boat, since now no money will go to either religious or nonreligious schools. So there’s no discrimination going on now, is there?” Justice Elena Kagan asked.
But the court’s conservatives suggested that Montana acted with a discriminatory purpose when it shut down the program solely because it gave money to religious schools. Justice Brett Kavanaugh said it would be equally discriminatory to single out certain faiths.
“What if the state said you can use scholarship funds for private schools, but not for Jewish or Protestant schools? Wouldn’t that be discrimination?” he asked.
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SOURCE: NBC News, Pete Williams