In 2015, the Montana legislature passed a voucher-like tax-credit program that allows taxpayers to receive dollar-for-dollar tax credits for donations they made to Student Scholarship Organizations, which then awarded scholarships to students attending private schools. In other words, a taxpayer could divert a portion of the taxes they owed Montana to a scholarship organization to fund students’ private school tuition. The money could be used for religious and secular education. In practice, the vast majority of these funds were put toward religious education: 12 of the 13 private schools that initially received money from the program were religiously affiliated. And in 2018, more than 94% of scholarships went to students attending religiously affiliated schools.
Montana’s state constitution contains a “no-aid clause,” which specifically bars the government from providing direct or indirect aid to support religious education. In recognition of this constitutional provision, the Montana Department of Revenue issued a rule allowing only secular schools to receive funding through the program.
Three Montana parents whose children attend religious schools sued in state court, challenging the limitation of the program to secular private schools. We filed an amicus brief defending this limitation in the Montana Supreme Court in November 2017. The Montana Supreme Court held that the Montana Department of Revenue’s rule was inconsistent with the state legislature’s intent and therefore could not stand. But it then went on to strike down the entire tax-credit program, concluding that it violated Montana’s no-aid clause by including religious schools. The U.S. Supreme Court then agreed to hear the case.
We filed an amicus brief with the U.S. Supreme Court in November 2019, joined by 17 religious-freedom and civil-rights organizations. We argued that the federal constitution had never been read to require states to fund or support religious schools whenever they provide support to secular private schools. We also explained the founding-era understanding that restrictions on state funding of religion, including religious education, promote freedom of conscience and protect religious entities from the harmful effects of governmental support and interference.
In June 2020, the Supreme Court issued a 5-4 decision in favor of the religious-school parents, holding that the Free Exercise Clause prohibited Montana from excluding religious schools from its tax-credit program solely because of their religious status.