The United States Supreme Court appeared divided on Wednesday in a major legal battle over taxpayer funds going to religious schools. Chief Justice John Roberts is emerging as the potential pivotal vote in a Montana case that could open the door to more public aid for faith-based institutions.
The nine justices heard about an hour of arguments over a Montana tax credit programme beneficial to private religious schools. Three mothers of students at a Christian school in Kalispell, Montana, challenged a lower court ruling that struck down the programme as a violation of the state constitution’s ban on government aid to religious schools and churches.
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The ruling in the case, expected by the end of June, could narrow the separation of church and state.
Some conservative justices expressed sympathy for the challengers, suggesting that excluding religious schools from the tax-credit programme amounts to impermissible discrimination. Liberal justices countered that there was no discrimination because the entire programme had been struck down. The court has a 5-4 conservative majority.
Roberts, a traditional conservative who is considered the court’s ideological centre, asked questions that reflected a concern for public education and for the protection of religious people. Roberts questioned how public school funding could be affected. He also wondered whether discrimination seen in this case is different from racial discrimination in a scenario such as officials shutting down all public swimming pools that could be used by African Americans.
Roberts is doing double duty, afterwards presiding over US President Donald Trump‘s impeachment trial in the US Senate.
The mothers of Stillwater Christian School students sued in 2015, arguing that excluding religious school pupils from a scholarship programme that helped pay tuition costs violated their rights under the US Constitution to free exercise of religion and equal protection under the law.
Churches and Christian groups in the US have pushed for years to expand access to public dollars for religious schools and places of worship, testing the limits of secularism in the country.
Much of the litigation has involved attempts to create vouchers or other subsidies for private religious schools in states such as Montana where constitutions explicitly ban such funding. Republican Trump’s education secretary, Betsy DeVos, is a prominent supporter of such “school choice” plans. The plaintiffs in the Montana case are backed by Trump’s administration.
Critics of the programmes have said they would siphon off scarce resources from public schools. These critics have said a ruling in favour of the plaintiffs would require taxpayers to underwrite religious institutions – despite the US Constitution’s prohibition on government establishment of religion. They also said some of these religious institutions may discriminate against LGBT students or employees.
The Montana case gives the court a chance to build on its major 2017 religious rights ruling in favour of a Missouri church, Trinity Lutheran, that challenged its exclusion from state playground improvement grants generally available to other non-profit groups.
The Supreme Court ruled 7-2 in that case that churches and other religious entities cannot be flatly denied public money even in states where constitutions explicitly ban such funding. But the ruling was narrow and emphasised it was not addressing “religious uses of funding or other forms of discrimination”.
On Wednesday, some liberal justices emphasised that while that case involved excluding a church from a secular benefit, the Montana case involves subsidising religious activity.
“That’s a far cry from Trinity Lutheran,” liberal Justice Elena Kagan said, adding that a state might not want to subsidise religious entities out of concern for burdening religion or promoting divisiveness.
Liberal Justice Stephen Breyer wondered whether a ruling for the plaintiffs would require states to fund private religious schools as they do secular public schools.
The Montana tax credit programme at issue in the case, created in 2015, provided up to $150 as an incentive for donations to groups that fund scholarships for private school tuition. The one such scholarship organisation currently operating provides $500 payments to schools, primarily to help low-income students attend.
State tax officials limited the programme to non-religious schools to comport with the state constitution, which forbids public aid to any “church, sect or denomination”. Thirty-eight states have such constitutional provisions.
Conservative Justice Brett Kavanaugh, who is Catholic, noted that those provisions were historically “rooted in grotesque religious bigotry against Catholics”. He wondered how barring religious people from the tax credit benefit is not “telling them that they’re not entitled to equal treatment under the Constitution”.
The Montana Supreme Court in 2018 struck down the scholarship programme entirely because it could be used to pay for religious schools. Most private schools in Montana are religious.