FROM NO AID TO MUST AID? A Pending U.S. Supreme Court Case Could Compel States To Pay For Religious Education.

AuthorHayes, Liz

In the coming months, private school voucher advocates will go before the U.S. Supreme Court in an attempt to connect a church preschool's playground in Missouri to a private Christian school in Montana.

Depending on whether and how that connection is made, the justices could issue a decision that protects the religious freedom of Montana taxpayers --or they could further erode the separation of religion and government not just in Montana, but in three-quarters of U.S. states.

The case, Espinoza v. Montana Department of Revenue, revolves around the "no-aid" provision in Montana's state constitution that protects residents from being forced to fund religious education or any other religious purposes.

The no-aid clause clearly is a core, traditional value for Montanans: Not only was it included in Montana's first constitution when it became a state in 1889, but citizens kept a similar clause in the amended constitution they ratified in 1972. Article X, Section 6, of the modern constitution reads: "The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination."

That clause protects both religious freedom and public education by ensuring that public money can't be diverted away from public schools to fund religious education through private school voucher schemes.

In 2015, legislators tried to circumvent their own constitution by creating a neo-voucher scheme called the Montana Tax Credit Scholarship Program. Rather than directly paying for students' private school tuition from the state treasury, the tax credit program essentially launders the money by using private intermediaries to divert tax money that would be owed to the state to subsidize private school tuition. The end result is the same--taxpayer funds support private, mostly religious education rather than the public schools that educate the vast majority of Montana students.

Legislators didn't hide that they were trying to get around the constitution by funneling the money through intermediaries. State Sen. Llew Jones (R-Conrad), the sponsor of the tax-credit legislation, noted during a legislative hearing that lawmakers...

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