Montana created a program that granted tax credits to organizations that awarded scholarships for private school tuition. Because Montana’s Constitution expressly prohibits “appropriation or payment” to sectarian schools—a “no-aid clause”—the State issued a rule prohibiting the scholarships from being used toward religious schools. Three mothers who wanted to use the scholarships to send their children to a Christian private school sued, arguing that the prohibition discriminated based on religion in violation of the Free Exercise Clause of the First Amendment. The trial court enjoined the restriction, reasoning that the tax credit program as structured did not violated the no-aid clause, but the Montana Supreme Court reversed and struck the entire program.

The Court, in a 5-4 opinion by Chief Justice Roberts, reversed again, holding that Montana’s no-aid clause discriminated against religious schools solely for being religious, which conflicted with the protection of the Free Exercise Clause. Applying strict scrutiny, the majority rejected the State’s argument that the ban promoted religious freedom, and held that the Montana Supreme Court could not use the State’s Constitution as an excuse to abrogate the First Amendment. Justice Thomas, joined by Justice Gorsuch, concurred, arguing that although this case was a Free Exercise Clause case, the Court’s prior Establishment Clause jurisprudence, requiring the government to treat religions equally to non-religion, continues to negatively impact the free exercise of religion. Justice Alito also filed a concurrence, arguing that the Montana Constitution’s no-aid clause was related to the anti-Catholic Blaine Amendments in the 1800’s.

Justice Gorsuch filed a concurrence arguing that the majority’s focus on religious status was functionally indistinct from consideration of a law’s effect on religious activity. Justice Ginsburg, joined by Justice Kagan, dissented, arguing that the State’s prohibition as applied did not burden religious exercise as applied by the State supreme court. Justice Breyer, joined in part by Justice Kagan, also dissented, arguing that the majority’s opinion risks further entanglement between church and state that could promote discord. Justice Sotomayor provided the final dissent, arguing that the majority was wrong to undo the State supreme court’s ruling.

A link to the decision in Espinoza v. Montana Dept. of Revenue is here: https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf