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ADF: Montana program allowing parents, students to choose religious school should be upheld

Brief urges US Supreme Court to reverse ruling of state high court
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WASHINGTON – Attorneys with Alliance Defending Freedom and Gibson, Dunn & Crutcher filed a friend-of-the-court brief Wednesday with the U.S. Supreme Court that urges it to reverse a ruling by the Montana Supreme Court that struck down the state’s tuition tax credit program. The state court killed the program because it allows taxpayers to use the tax credit for religious as well as nonreligious school tuition.

The brief in Espinoza v. Montana Department of Revenue represents the views of the Arizona Christian School Tuition Organization and Michigan’s Immaculate Heart of Mary Catholic School. The case addresses whether states may oust parents and children from neutral government benefit programs because they choose a religious private school.

“States cannot base benefit programs on hostility toward religion, yet Montana’s constitution enshrines such hostility into state law,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “The Montana Supreme Court ignored the U.S. Supreme Court’s recent Trinity Lutheran decision. As that decision unequivocally reaffirmed, states cannot impose ‘special disabilities on the basis of religious views or religious status.’ The court should not allow the dead hand of 19th century anti-Catholic bigotry—which motivated the state constitutional provision at issue here—to put a stranglehold on educational resources desperately needed by parents and their children.”

The friend-of-the-court brief explains that the Montana Legislature designed its tax credit program to ensure the state would give equal treatment to religious and nonreligious schools. The program allowed parents to claim a tax deduction for donations to scholarship programs benefiting secular and religious private schools, as well as donations to public schools. But the Montana Department of Revenue, responsible for implementing and administering the program, created a rule to exclude religious schools from the tax credit program, citing Montana’s Blaine Amendment—a state constitutional provision with a sordid history enacted in the 1800s. The Montana Supreme Court invalidated all tax credits for students seeking to attend a private school solely because the program didn’t exclude students who attended religiously affiliated schools. The court left in place the tax credit for donations to public schools.

According to the brief, “Parents across the nation struggle to find the resources to send their children to schools that best serve their children’s needs. State legislatures have responded by developing innovative programs that allow taxpayers to receive credits for contributing to private funds that provide parents with sorely needed educational resources. Parents and students should not be walled off from these resources simply because they choose faith-based schools. Indeed, the Constitution prohibits such unequal treatment.”

The brief describes how Montana’s Blaine Amendment has a “shameful pedigree” of anti-Catholic bigotry and continues to discriminate against people of faith.

“For over a century, Blaine Amendments have blocked some children from accessing the educational opportunities otherwise available to all children. They continue to do serious harm today,” the brief concludes. “The Court should make clear once and for all that religious bigotry is not constitutionally protected, but is fundamentally at odds with the Free Exercise Clause.”

Alliance Defending Freedom attorneys represented Trinity Lutheran Church of Columbia in its 2017 win at the U.S. Supreme Court and also represented the Arizona Christian School Tuition Organization in its 2011 win at the high court in defense of Arizona’s tuition tax credit program.


Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.


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John Bursch
John Bursch
Senior Counsel, Vice President of Appellate Advocacy
John Bursch is senior counsel and vice president of appellate advocacy with Alliance Defending Freedom.