Espinoza v. Montana Department of Revenue (Montana Supreme Court, 2017)

This case involves the constitutionality of a Montana Department of Revenue rule, which prohibits the use of “scholarships” provided under a State neo-voucher program to support K-12 religious education. The rule was issued pursuant to the Montana Constitution’s “No-Aid” clause, which requires stronger separation of church and state than the First Amendment to the U.S. Constitution. The neo-voucher program provides a tax-credit to individuals who make a donation to private organizations that in turn provide funding for K-12 students to attend private schools, including religious schools. The program does not prohibit participating religious schools from indoctrinating religion or discriminating on the basis of multiple personal characteristics. The No-Aid clause, however, prohibits direct or indirect state support of schools controlled in whole or in part by a religious denomination. The plaintiffs challenged the Department of Revenue rule. The amicus brief asserts that the No-Aid clause and rule issued pursuant to it do not violate the U.S. Constitution’s free exercise or equal protection clauses. Rather, the tax credit is an attempt to circumvent the No-Aid clause for the purpose of using the State’s tax system to indirectly support religious education. The rule is required by the No-Aid clause because that provision has been broadly interpreted by Montana Courts to strictly prohibit state aid to religious education, including indirectly through intermediaries.