The
Washington Post has a piece on a pending SCOTUS case involving school vouchers and religious schools.
Parents who believe religious schools such as Stillwater absolutely are the places for their children are at the center of what could be a landmark Supreme Court case testing the constitutionality of state laws that exclude religious organizations from government funding available to others. [My underlines]
Keep an eye on the underlined statement and keep this question in mind: Is the state funding religious organizations or funding citizens educational choices?
In this case, the issue rests on whether a scholarship fund supported by tax-deductible donations can help children attending the state’s private schools, most of which are religious.
So citizens voluntarily fund a scholarship program that is handed out to children to attend [private] schools.
And Montana told the court that, as in 37 other states, it is reasonable for its constitution to prohibit direct or indirect aid to religious organizations.
“The No-Aid Clause does not prohibit any religious practice,” Montana said in its brief. “Nor does it authorize any discriminatory benefits program. It simply says that Montana will not financially aid religious schools.”
It is one thing for a state to not directly fund a religious institution. That would indeed set a "Church-State" conflict. But the so-called "indirect" rule is, in my opinion, unconstitutional because it dictates to the citizens what they can spend their tax dollars on. The state has no authority to dictate to citizens how they can spend their money short of criminal enterprises.
The Montana case is prompted by a 2015 decision by the state’s legislature to create a tax-credit program for those who wanted to donate to a scholarship fund. The program allowed dollar-for-dollar tax credits to those who donated up to $150 to an organization that provides aid to parents who want to send their children to private school. [My underlines]
Again note that the money is given to parents who decide where their children will go to school. The state has no business telling a parent where they can send their children to school (again short of criminal enterprises) AND by telling parents they cannot exercise what they see as their duty to provide a religious education for their children, they have stepped on their free exercise rights.
If the people on Montana did not want to provide funds to religious organizations then they should not have set up the government organized scholarship program at all. Which the Montana Supreme Court did:
But Montana, in its brief to the Supreme Court, said the state’s high court took the only option that made sense of both the state’s constitution and its obligation not to single out the religious — striking down the tax-credit program for both religious and nonreligious private schools.
So what's the problem?
The plaintiffs “now contend that even that is unconstitutional,” wrote Washington lawyer Adam Unikowsky, who is representing the Montana Department of Revenue. “It matters not, in Petitioners’ view, that the government also does not aid similarly situated nonreligious schools. . . . Petitioners claim that the Constitution prohibits the bare act of applying a state constitutional provision that keeps government out of the business of aiding religious schools.”
This is plain overreach by the plaintiffs. You cannot on the one hand claim that you have a right to funds on equal terms and on the other claim that the state owes you a program. The state owes the plaintiffs no such thing. The decision by the Montana high court was right. I don't think there is much for SCOTUS to do here. At the bare minimum, plaintiffs who felt they were discriminated against while the program was in effect can argue for relief or remedy for that past action. Other than that all the SCOTUS can really do is affirm the all or none that the free exercise clause implies.
