U.S. Supreme Court divided over public funds for religious schools

WASHINGTON (Reuters) – U.S. Supreme Court justices on Wednesday appeared divided over a Montana tax credit program that could benefit private religious schools in a case that could open the door to more public funding for religious institutions.

In the major religious rights case, the justices heard about an hour of arguments in an appeal by three parents of students who attend a Christian school in Kalispell, Montana. They are challenging a lower court ruling that struck down the tax credit program as a violation of the state constitution’s ban on government aid to religious schools and churches.

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 program amounts to impermissible discrimination. Liberal justices noted that there was no discrimination because the entire program had been struck down.

Chief Justice John Roberts emerged as the possible pivotal vote in what will likely be a closely divided case, asking questions that reflected both the concern for public education and for the protection of religious people. Roberts is doing double duty, also presiding over President Donald Trump’s impeachment trial in the U.S. Senate.

Outside the court ahead of the arguments, a handful of protesters rallied, holding signs promoting secular values such as “Keep church and state separate” and “No tax dollars for religious schools.”

Churches and Christian groups in the United States have pushed for years to expand access to public dollars for religious schools and places of worship, testing the limits of secularism in the United States.

Much of the litigation has involved attempts to create vouchers or other subsidies for private religious schools in states like Montana whose constitutions explicitly ban such funding. Republican President Donald 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 programs have said they would siphon off scarce resources from public schools. These critics have said a ruling in favor of the plaintiffs would require taxpayers to underwrite religious institutions – despite the U.S. 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, which has a 5-4 conservative majority, a chance to build on its major 2017 religious rights ruling in favor of a Missouri church that challenged its exclusion from state playground improvement grants generally available to other nonprofit 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.

In the Montana case, the mothers of Stillwater Christian School students sued in 2015, arguing that excluding religious school pupils from a scholarship program that helped pay tuition costs violated their rights under the U.S. Constitution to free exercise of religion and equal protection under the law.

A 2015 Montana law provided people a tax credit of up to $150 as an incentive for donations to groups that fund scholarships for private school tuition. The one such scholarship organization currently operating provides $500 payments to schools, primarily to help low-income students attend.

State tax officials limited the program to non-religious schools in order to comport with the state constitution, which forbids public aid to any “church, sect or denomination.” Thirty-eight states have such constitutional provisions.

The Montana Supreme Court in 2018 struck down the scholarship program because it could be used to pay for religious schools. Most private schools in Montana are religious.

Montana said its no-aid provision protects religious freedom by preventing the government from gaining influence over religious schools and weakening public schools.