Espinoza v. Montana Department of Revenue

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Espinoza v. Montana Department of Revenue
Argued January 22, 2020
Decided June 30, 2020
Full case nameKendra Espinoza, et al. v. Montana Department of Revenue, et al.
Docket no.18-1195
Citations591 U.S. ___ (more)
140 S. Ct. 2246; 207 L. Ed. 2d 679
Case history
PriorEspinoza v. Montana Dep't of Revenue, 2018 MT 306, 393 Mont. 446, 435 P.3d 603; cert. granted, 139 S. Ct. 2777 (2019).
The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Neil Gorsuch · Brett Kavanaugh
Case opinions
MajorityRoberts, joined by Thomas, Alito, Gorsuch, Kavanaugh
ConcurrenceThomas, joined by Gorsuch
DissentGinsburg, joined by Kagan
DissentBreyer, joined by Kagan (Part I)
Laws applied
U.S. Const. amend. I

Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020), was a landmark[1][2][3][4] United States Supreme Court case in which the Court ruled that a state-based scholarship program that provides public funds to allow students to attend private schools cannot discriminate against religious schools under the Free Exercise Clause of the Constitution.[5]


Kendra Espinoza, primary plaintiff, on Reason TV in 2020

The state of Montana passed a special income tax credit program in 2015 to help fund non-profit scholarship organizations to help low-income families pay for private schools. For tax payers, they were able to pay up to US$150 into the program and receive a dollar-for-dollar state tax credit to support it. This type of tax-credit scholarship program for private school selection is similar to ones in eighteen other states as of 2019.[6]

Montana, as with 37 other states, have so-called Blaine amendments in their constitutions which were originally designed to prevent funding Catholic schools in the 19th century.[7][3] Jonathan A. Greenblatt, chief executive of the Anti-Defamation League, said that the continued purpose of these Blaine amendments "serve significant government interests — leaving the support of churches to church members, while also protecting houses of worship against discrimination and interference from the government."[8]

Montana's constitution bars the uses of "any direct or indirect appropriations or payment" to any religious organizations or schools affiliated with religious organizations, also known as the "no-aid" provision.[7] The Montana Department of Revenue (DoR) developed the program's rules around the no-aid provision and disallowed religious-affiliated schools from receiving any of the scholarship money, otherwise known as "Rule 1".[9] Rule 1 was controversial even within the state government, as both state legislators and the attorney general had asserted it was not needed, but the DoR implemented it against their cautions, asserting that the scholarship funds were equivalent to appropriations and thus covered by the no-aid provision.[9]

Three low-income families who had children attended Stillwater Christian School in Flathead County and would have been eligible for scholarships through the program outside of their school choice filed a lawsuit against the state and sought an injunction against the program, asserting that Rule 1 unnecessary against the no-aid provision and that it discriminated against them due to their religion under the First Amendment to the United States Constitution.[9] Their lawsuit was supported by the Institute for Justice, a non-profit organization that has fought against state laws that enforce the Blaine amendments in their constitutions.[1] They obtained the injunction to block the DoR from enforcing the rule in April 2016.[9] The state began to appeal this ruling, but otherwise continued the program with the ordered injunction, which allowed additional scholarships to be granted for several children attending Stillwater.

The state's appeal to the Montana Supreme Court was decided in December 2018, which ruled in a 5–2 decision that the entire program was unconstitutional because it benefited religious schools.[10] The Court majority stated that the "[Constitution of Montana] more broadly prohibits 'any' state aid to sectarian schools and draws a more stringent line than that drawn by [the U.S. Constitution]."[11] Further, the Court found that even with the DoR's Rule 1 in place, the program still could not prevent any type of aid from the program from ending up at a religious school, and thus nullified the entire program.[10][11]

Supreme Court[edit]

The families petitioned to the United States Supreme Court for review, seeking review of the Montana Supreme Court's decision to terminate the program on the basis of the Religion Clauses or Equal Protection Clause. The Supreme Court granted certiorari in June 2019.[6]

Oral arguments were heard on January 22, 2020. The Justices focused on whether the Montana Supreme Court's decision to shut down the entire program was discriminatory towards the secular schools, as well as trying to resolve this case with recent decision related to the Free Exercise Clause, such as Trinity Lutheran Church of Columbia, Inc. v. Comer,[12] in which the Court previously ruled that blocking public funds to be used by a church to improve playground safety was a violation of the Free Exercise Clause.[7]

Majority opinion[edit]

The Court issued its decision on June 30, 2020.[13] The 5–4 decision reversed the Montana Supreme Court's ruling and remanded the case.[14] Chief Justice John Roberts wrote for the majority, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Roberts wrote in his opinion that the no-aid provision (Rule 1) in the program violated the Free Exercise clause,[15] as it "bars religious schools from public benefits solely because of the religious character of the schools" and "also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school."[16] Roberts also asserted that the Montana Supreme Court was wrong to invalidate the entire program on the basis of the no-aid provision in the state constitution.[16] Roberts wrote that "A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious."[1] Roberts based part of the majority's opinion on the previous Trinity case where the public funds were used for a non-secular purpose (church playground improvement), while contrasting it from the decision of Locke v. Davey,[17] where the Court found that preventing the use of public scholarship funds for students entering into theology studies was constitutional.[18]


Justice Thomas wrote his own concurrence which was joined by Gorsuch. While he agreed with the judgement, Thomas believed the court should have relied on the Establishment Clause, in which the scholarship program, without Rule 1, would not have established any government-backed support of any specific religion.[19]

Alito's concurrent discussed the history of the Blaine amendments, including mention of the 1871 political cartoon by Thomas Nast "The American River Ganges".

Justice Alito also concurred. Alito cited the Court's earlier decision in Ramos v. Louisiana,[20] in which judgement was partially based on the motivation of outdated Jim Crow laws in the nature of jury verdicts. Alito wrote that the no-aid provision in Montana's constitution must be considered the same way: "Montana's no-aid provision was modeled on the failed Blaine Amendment to the Constitution, which was prompted by virulent prejudice against Catholic immigrants. Montana's claim that the provision merely reflects a state interest in preserving public schools ignores that the public-school (or common-school) movement at the time was itself anti-Catholic. It is also not clear that the anti-Catholic animus was scrubbed from the no-aid provision when it was re-adopted at Montana's constitutional convention in 1972."[19][21]

Justice Gorsuch also wrote a concurrence, emphasizing that the Free Exercise Clause "protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly. Our cases have long recognized the importance of protecting religious actions, not just religious status."[19]


Separate dissents were written by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, with Justice Elena Kagan joining on both Ginsburg and Breyer's dissents. Ginsburg, in her dissent, acknowledged to Roberts' point that states are not required to subsidize private education and in the case of Montana, their court discontinued the program, which does not affect the Free Exercise Clause. She wrote, "Petitioners may still send their children to a religious school... There simply are no scholarship funds to be had."[22][23] Sotomayor called the majority's ruling "perverse" in requiring Montana "to reinstate a tax-credit program that the Constitution did not demand in the first place."[24]


The Espinoza decision is seen likely to impact subsequent rules in the 38 states with Blaine amendments.[7][3][25] At the time of the decision 17 states had scholarship programs similar to Montana's, though some like Florida and Indiana had already found means to allow such funds to be used for selection of religious schools despite no-aid clauses in their constitutions. The Institute for Justice, which represented the parents, plans to use the ruling to challenge programs in Maine and Vermont which do block such funds. U.S. Department of Education Secretary Betsy DeVos, a proponent of school choice and who has been seeking a federal-level tax-credit program, also praised the decision.[26]


  1. ^ a b c Barnes, Robert (July 1, 2020). "Courts & Law: Supreme Court says states that subsidize private education must include religious schools". The Washington Post. Archived from the original on July 2, 2020. Retrieved July 2, 2020. In what advocates called a landmark ruling, Roberts said the religious protections of the U.S. Constitution prevail. It holds implications for public funding of religious institutions in other areas and continues a recent pattern of the Supreme Court erasing stark lines in the separation of church and state.
  2. ^ John Kramer (Vice President for Communications) (June 30, 2020). "Landmark Victory for Parents In U.S. Supreme Court School Choice Case". Institute for Justice. Archived from the original on July 2, 2020. Retrieved July 2, 2020.
  3. ^ a b c Liv Finne (Director of the Center for Education at Washington Policy Center) (June 30, 2020). "Landmark Court ruling opens up education options for WA parents". Washington Policy Center. Archived from the original on July 2, 2020. Retrieved July 2, 2020. The U.S. Supreme Court ruled that by preventing these families from using tax credit scholarships at a private religious school, the state of Montana violated their First Amendment right to the free exercise of religion. Today's ruling invalidates Montana's “no-aid” clause and the Blaine Amendments of 37 states, including the Blaine Amendment in Washington state's constitution. {{cite web}}: |author1= has generic name (help)
  4. ^ Howe, Amy (June 30, 2020). "Opinion analysis: Court rules that religious schools cannot be excluded from state funding for private schools". SCOTUSblog. Archived from the original on July 3, 2020. Retrieved July 2, 2020. Today's decision was a landmark win for school-choice advocates.
  5. ^ Espinoza v. Montana Dep't of Revenue, No. 18-1195, 591 U.S. ___ (2020).
  6. ^ a b "Supreme Court to review Montana school choice program". Associated Press. June 28, 2019. Retrieved June 30, 2020.
  7. ^ a b c d Liptak, Adam (January 22, 2020). "Supreme Court Seems Ready to Lift Limits on State Aid to Religious Schools". The New York Times. Retrieved June 30, 2020.
  8. ^ Barnes, Robert (June 26, 2017). "Supreme Court sides with religious institutions in a major church-state decision". The Washington Post. Archived from the original on June 28, 2020.
  9. ^ a b c d Michels, Holly (April 9, 2016). "Flathead families say school choice scholarships fill gap". Missoulian. Retrieved June 30, 2020.
  10. ^ a b Espinoza v. Montana Dep't of Revenue, 2018 MT 306, 393 Mont. 446, 435 P.3d 603.
  11. ^ a b Walsh, Mark (December 23, 2018). "Montana Supreme Court Strikes Down Tax-Credit Program for Private Schools". Education Week. Retrieved June 30, 2020.
  12. ^ Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577, 582 U.S. ___ (2017).
  13. ^ Sherman, Mark (June 30, 2020). "Supreme Court lifts ban on state aid to religious schooling". AP News. AP News. Archived from the original on June 18, 2021. Retrieved June 18, 2021.
  14. ^ Case Comment, First Amendment-Free Exercise Clause- Government Aid to Religious Schools-Espinoza v. Montana Department of Revenue, 134 Harv. L. Rev. 470 (2020).
  15. ^ Whelan, Ed (June 30, 2020). "Law & The Courts: Important Free Exercise Victory in Espinoza v. Montana Department of Revenue". National Review. Archived from the original on March 16, 2022. Retrieved March 16, 2022.
  16. ^ a b Higgens, Tucker (June 30, 2020). "Supreme Court says Constitution protects Montana scholarship program that indirectly funds religious schools". CNBC. Retrieved June 30, 2020.
  17. ^ Locke v. Davey, 540 U.S. 712 (2004).
  18. ^ Liptak, Adam (June 30, 2020). "Supreme Court Strikes Down Limits on State Aid to Religious Schools". The New York Times. Retrieved June 30, 2020.
  19. ^ a b c Whelan, Ed (June 30, 2020). "Concurring Opinions in Espinoza v. Montana Department of Revenue". National Review. Archived from the original on March 16, 2022. Retrieved July 2, 2020.
  20. ^ Ramos v. Louisiana, No. 18-5924, 590 U.S. ___ (2020).
  21. ^ Keller, Aaron (June 30, 2020). "Justice Alito Cites 1871 Anti-Catholic Political Cartoon of Priests as Crocodiles in Religious Liberty Opinion". Law & Crime. Retrieved July 2, 2020.
  22. ^ Espinoza, slip op., at *3 (Ginsburg, J., dissenting).
  23. ^ Wolf, Richard (June 30, 2020). "Supreme Court makes religious school education eligible for public aid". USA Today. Retrieved June 30, 2020.
  24. ^ Espinoza, slip op., at *11 (Sotomayor, J., dissenting).
  25. ^ Hirsen, James (July 2, 2020). "Symposium: A takedown of the Blaine Amendments". SCOTUSblog. Archived from the original on July 3, 2020. Retrieved July 3, 2020.
  26. ^ Blad, Evie (June 30, 2020). "What the Supreme Court's Ruling on Religious Schools Means in Practice". Education Week. Archived from the original on July 23, 2020. Retrieved July 2, 2020.

External links[edit]