When the 2019 term of the United States Supreme Court starts in just a few weeks, one case may be of interest to churches and religious leaders interested in following the developments of First Amendment jurisprudence. In Espinoza v. Montana Department of Revenue, the Court will seek to answer the question of whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.

Espinoza comes to the Court on appeal from the Montana Supreme Court, which ruled that a provision of the state constitution, Article X, Section 6, does not permit needy families that choose religious schools to participate in an otherwise available tax-credit scholarship program created by the Montana legislature. The Montana Supreme Court held that because the tax credit was available to students who attended religious schools, the program was unconstitutional under Montana’s constitutional prohibition against using public funds, directly or indirectly, to aid religious educational institutions. 

Petitioners appealed the Montana Supreme Court’s decision to the United States Supreme Court, arguing that the state-mandated religion-based penalty runs afoul of the Supreme Court’s relevant precedents and doctrine. As a side note, the Montana Constitution was amended during a time in American history marked by virulent anti-Catholic bias and was arguably meant to restrict funds to Roman Catholic schools. Whether this history should impact the Court’s decision is hotly debated.

Nonetheless, a little over two years ago, the Court held by a 7-2 margin in Trinity Lutheran Church of Columbia, Inc. v. Comer that a similar “no aid” rule in Missouri that prohibited a Lutheran preschool from participating in a state program that distributed playground-surfacing material made from recycled tires to qualified preschools regardless of any religious affiliation was unconstitutional. In Trinity, Chief Justice John Roberts wrote that a policy that “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character … triggers the most exacting scrutiny.” And a state’s mere “policy preference for skating as far as possible from religious establishment concerns” – that is, for a stricter no-aid-to-religion regime than the First Amendment requires – will not satisfy such review.

In a footnote to his opinion, Roberts noted that Trinityinvolved anti-religious discrimination “with respect to playground resurfacing” and not “religious uses of funding or other forms of discrimination.” Espinoza asks the Court to go further—to hold that the government may provide benefits more directly to religious educational institutions in the same manner that it does to secular ones and to hold that a state may not discriminate in such funding because a religious institution may benefit from it.

This case will be interesting to watch as it may indicate the direction the Court takes on religion cases in the future—both establishment and free exercise cases—with the recent reconfiguration of the Court (Justice Gorsuch replacing Justice Scalia and Justice Kavanaugh replacing Justice Kennedy). In Trinity, Justices Breyer and Kagan joined the more conservative justices in the decision; it will be interesting to watch if this majority stays together in Espinoza. While the case will be heard this term, a date for oral argument has not yet been set. 

If you would like more information about how Reynolds Law Group, PLLC can help your nonprofit or church call 757.219.2500 or send us an email to assistant@reynoldslawgroup.com to set up a FREE consultation.

Also, for more information take a look at our last legal update, Do We Have to Pay Taxes on That? which takes a look at how income (other than from charitable donations) can affect the church and nonprofit organizations, including their tax-exempt status.