In 2018, the Montana Supreme Court struck down a state law granting taxpayers a dollar-for-dollar tax credit for contributions to organizations that funded tuition scholarships for students attending private schools, whether secular or religious. The Montana justices held that this program violated Article X, section 6 of the Montana Constitution, which prohibited the use of public funds for “any sectarian purpose” or their distribution to educational institutions “controlled in whole or in part by any sect or denomination.” The Montana Department of Revenue had sought to avoid the problem by restricting the scholarships to students attending secular schools, but the Montana Court ruled that this exceeded the Department’s powers and that the entire aid program was unconstitutional. In Espinoza v. Montana Department of Revenue the United States Supreme Court by a 5-4 vote reversed, holding that Montana’s exclusion of church-related schools from the program violated the Free Exercise Clause of the First Amendment, thereby apparently reinstating the program as originally adopted by the Montana Legislature. But the Supreme Court was able to do this only by misconstruing the facts of the case, mischaracterizing Montana’s constitutional provision, and improperly intervening in a dispute that had been settled under state law. The Supreme Court’s unseemly eagerness to intervene and invalidate Montana’s program, apparently rooted in the justices’ support for “school choice” programs, is likely to have broad consequences.
Speaking for the Court, Chief Justice Roberts framed the question as “whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program.” According to Roberts, “the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school.” This would have been true had the Montana Court endorsed the Department of Revenue’s rule excluding religious schools from the program. But it did not. Instead, it struck down the program as a whole. As a result, students attending religious private schools were treated no differently than students attending secular private schools—neither would receive tuition assistance.
The Montana Court’s approach was hardly unusual. When a state policy unconstitutionally extends a benefit to members of one group while denying it to members of another group, there are two options for remedying the situation. The state can equalize up, extending the benefit to members of the previously excluded group. Or it can equalize down, withdrawing the benefit from the previously advantaged group and thereby treating members of both groups in the same way. The Montana Court concluded that the state constitution required it to choose the latter course, and so it eliminated the tuition-assistance program.
Chief Justice Roberts had to misrepresent the facts of the case because otherwise there was no constitutional violation—as he admitted, “a State need not subsidize private education.” As Justice Sotomayor noted in dissent, the Montana Court’s ruling had rendered the program “defunct,” and so there was no current discrimination based on religion. At one point the Roberts majority seemed to admit this, noting that “the tax credit is no longer available to support scholarships at either religious or secular private schools.” But it refused to accept the implications of that conclusion, insisting that “the Legislature never chose to end [the program]” but that it “was eliminated by a court, and not based on some innocuous principle of state law.” This dubious imputation of illegitimacy, which underlies the Court’s position, deserves scrutiny.
The Chief Justice did not forthrightly strike down Montana’s no-aid provision as inconsistent with the First Amendment’s Free Exercise Clause. He might have been reluctant to do so because the constitutions of 37 other states had analogous provisions. But he certainly hinted at its illegitimacy, describing the Montana provision as “discriminat[ing] based on religious status” and “belonging to a more checkered tradition shared by the Blaine Amendment”, which was partially rooted in anti-Catholic bigotry. Presumably the no-aid provisions in other states, sharing the same genealogy, would likewise be suspect. In his concurring opinion, Justice Alito went further, charging that the impetus for Montana’s no-aid provision was hostility toward Catholicism. The text of the provision gives no indication of this, merely forbidding the use of public funds “directly or indirectly” for “any religious purpose” or to aid schools “controlled in whole or in part by any church, sect, or denomination whatever.” But Justice Alito insisted that the ban on aid to “sectarian” institutions was merely “code” for Catholic institutions. Although some proponents of the federal Blaine Amendment were anti-Catholic, Justice Alito’s claim seems far-fetched. Montana included the no-aid provision in its 1889 constitution because Congress, in authorizing the Montana territory to draft a constitution and apply for citizenship, required that the constitution provide “systems of public schools, which shall be free from sectarian control.”
In crafting the no-aid provision, as the Montana justices noted in Espinoza, the drafters of the state’s initial constitution were merely “more fiercely protect[ing]” the “basic notion of the separation of church and state [that] is a foundation of our Nation’s federal Constitution.” Importantly, Congress also mandated that the Montana Constitution secure “perfect toleration of religious sentiment . . . and that no inhabitant of said States shall ever be molested in person or property on account of his or her mode of religious worship.” The drafters of the 1889 Montana Constitution responded to the congressional mandate to combat religious bigotry with an eloquent and expansive religious-liberty guarantee. There is no evidence of anti-Catholicism in the records of the 1889 convention, and certainly none in the 1972 convention, which after debate readopted the ban on public aid to religious institutions. Nor does the ban on aid merely impact Catholics: in Espinoza the plaintiffs were mothers of students seeking tuition aid to attend a non-Catholic Christian school.
Finally, Chief Justice Roberts claimed that “the elimination of the [tuition-aid] program flowed directly from the Montana Supreme Court’s failure to follow the dictates of federal law.” But the Montana justices in Espinoza had no occasion to address federal law because state law—specifically, the no-aid provision of the Montana Constitution—sufficed to resolve the case, eliminating the alleged discrimination by invalidating the entire program under which it occurred. In looking first as to whether state law provided a basis for deciding the case, the Montana justices were on solid ground. As the old saw about not making a federal case of it suggests, it is good judicial practice to decide cases on the narrowest possible grounds—statutory law rather than constitutional law, state law rather than federal law. Beyond such prudential considerations, as the celebrated Justice Hans Linde of the Oregon Supreme Court persuasively argued, the logic of the federal Constitution demands a state-law-first approach. The prohibitions of the Bill of Rights do not apply to the states directly but rather through the Due Process Clause of the Fourteenth Amendment. A federal court cannot rule that a state has violated federal constitutional rights and denied due process under the Federal Constitution until the state has completed its action, and this does not occur until a state court has considered whether the state’s action is valid under state law. Only if a state’s action is compatible with state law but nonetheless violates the Bill of Rights is there a federal constitutional violation. Thus, having decided Espinoza on what judicial doctrine refers to as “adequate and independent state grounds,” the Montana Court had no need to consider the federal Free Exercise Clause.
This is crucial because if a state court decides a case involving two state citizens solely on the basis of state law—the standard legal terminology is “adequate and independent state grounds”—federal courts lack jurisdiction to review the court’s ruling. To avoid this outcome and assert jurisdiction, Chief Justice Roberts pointed to the Montana Supreme Court’s passing acknowledgement, after it had decided Espinoza, that a case could arise “where prohibiting the aid would violate the Free Exercise Clause” but that “this is not one of those cases.” Presumably the Montana Court was referring to the fact that its ruling did not treat secular private schools differently from religious private schools. This statement, Chief Justice Roberts argued, sufficed to make Espinoza a federal-law case over which the Supreme Court could exercise jurisdiction. This is, at best, debatable.
Espinoza might seem a minor case, affecting only a modest aid program in a single state. But if it were, the Supreme Court would not have chosen to hear it. Proponents of “school choice” immediately recognized its broader implications. President Donald Trump described “the SCOTUS ruling [as] a historic win for families who want SCHOOL CHOICE NOW.” Although Chief Justice Roberts only hinted at the illegitimacy of the no-aid provisions found in most state constitutions, Education Secretary Betsy DeVos recognized that as a result of Espinoza, “your bigoted Blaine Amendments and other restrictions like them are unconstitutional, dead, and buried.” And Institute for Justice Attorney Erica Smith, who was co-counsel on Espinoza, said the ruling would “allow states across the country to enact educational choice programs.” A constitutional challenge to Michigan’s no-aid provision is already in the courts, and challenges in other states are certain to follow.
Reasonable people can of course disagree about school-choice programs. Proponents insist that they enable parents to select the school that will best serve the needs of their children. Opponents counter that school-choice programs reduce funding for public schools and that public funds should not subsidize religious education. Opponents wish to maintain state constitutional bans on aid to religious schools, while proponents seek their elimination. This is an important discussion, but the Supreme Court’s ill-considered intervention in Espinoza threatens to short-circuit the debate.
G. Alan Tarr is Board of Governors Professor Emeritus in the Department of Political Science and Director for the Center for State Constitutional Studies at Rutgers University.
