The U.S. Supreme Court this morning heard oral arguments in an important case dealing with taxpayer funding of religious institutions – and Americans United President and CEO Rachel Laser and several AU attorneys were there to listen in. At issue in Espinoza v. Montana Dept. of Revenue is a question that would have been unthinkable just a few years ago: Are there situations in which the government is required to give public support to religious schools?
Montana’s legislature passed a school voucher program that used tax credits to divert public funds to private religious schools. But the state’s constitution is quite clear: It contains a religious freedom provision that protects Montana residents from being compelled to support religious institutions. Thus, the Montana Supreme Court invalidated the entire program.
Voucher advocates, including the Trump administration, are arguing that if a state chooses to adopt a voucher plan, it must include religious schools – no matter what that state’s constitution may say. If this standard is adopted, it will greatly weaken, if not obliterate, provisions in 37 state constitutions that protect people from being taxed to support religion.
The argument at the court this morning was spirited, and it was gratifying to hear some of the justices make the obvious point that opposition to compelled support for religion has a long and distinguished lineage in America.
Justice Sonia Sotomayor called the idea that the government may in some cases be required to support religion “a radical proposition” and invoked James Madison, noting that the Father of the Constitution was a lifelong opponent of forced support for religion.
Justice Stephen Breyer also seemed to understand that the ruling in this case could affect public education funding. He repeatedly pressed the attorneys arguing in favor of the voucher plan to answer whether states should be able to retain the option of funding only public schools.
But the conservative faction had its say as well. Justice Brett Kavanaugh asserted that provisions like the one in the Montana Constitution reflect anti-religion animus (overlooking the fact that the language in Montana, while similar to a 19th century clause, was enacted in 1972 with the support of many religious leaders). Justice Samuel A. Alito also weighed in, insisting that if states decide to fund private education, they can’t exclude religious schools.
Some of the justices made this case sound like a hard one, but it’s not. Public money should go to public schools, and no one should be compelled to pay for the religion of another.
Laser put it well in a recent op-ed in The Washington Post: “Some claim that not funding private religious education when private secular education is funded amounts to religious discrimination. They have it backward. Prohibiting government funding of religion protects religious freedom. Religious institutions that accept government money open themselves up to government interference, risk internal divisions and jeopardize their ability to be self-supporting in the future. A diverse array of religions have been able to thrive in America because of — not despite — the separation of religion and government.”
This is not a hard case. To resolve it, all the Supreme Court needs to do is look at our history and reaffirm the traditional concept that religion in America does best when it’s supported by contributions given voluntarily, not funds forced from the wallets of taxpayers.
Photo (from left): Associate Legal Director Alex J. Luchenitser, President and CEO Rachel Laser and Legal Director Richard B. Katskee outside U.S. Supreme Court