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The U.S. Supreme Court will hear arguments today in a case that could dramatically move the line that separates church from state. At the heart of this is a Montana state constitutional amendment that bars direct and indirect taxpayer aid to religious schools. Thirty-seven other states have similar amendments. Conservative religious groups and advocates of school choice are challenging the Montana provision. NPR legal affairs correspondent Nina Totenberg has the story.
NINA TOTENBERG, BYLINE: In 2015, the Montana Legislature passed a bill providing a dollar-for-dollar tax credit for those who donate to organizations that provide scholarship money to students in private schools. An organization called Big Sky began raising money to fund these scholarships, using the tax credit as an incentive. Of the 13 schools that got money from Big Sky, 12 were religious schools. Indeed, 70% of the private schools in the state have religious affiliations.
Ultimately, the Montana Supreme Court struck down the entire tax credit program for all private schools. It said the tax credit conflicted with the state constitution, which bars all state aid to religious schools, whether direct or indirect, like a tax subsidy. Today, advocates for school choice are asking the U.S. Supreme Court to revive the scholarship program in its entirety. They're backed by the Trump administration, including Education Secretary Betsy DeVos, who, as a private citizen and a Cabinet member, has advocated for what she recently called faith-based education.
Kendra Espinoza is the lead plaintiff in today's case. Divorced, she has two daughters who attend the Stillwater Christian School in Kalispell, Mont. An office manager and staff accountant, she works extra jobs in order to pay for her children's tuition.
KENDRA ESPINOZA: I wanted my kids to have a really strong sense of right and wrong from a biblical perspective. And I want them to understand that our sense of ethics and our morals come from God's word, not just man's ideas.
TOTENBERG: Lawyers challenging the no-aid provision in the Montana Constitution argue that the amendment itself was born of bigotry against Catholics in the 1800s and that the only way to fix such hostility to religion is to reinstate the whole tax benefit program. Erica Smith is a senior attorney at the Institute for Justice, which, for decades, has been fighting to get rid of state constitutional provisions like this one in Montana. She maintains that even though the state court invalidated the tax credit program for both religious and nonreligious schools...
ERICA SMITH: It's still religious discrimination because the only reason the court invalidated the program was because it included religious schools.
TOTENBERG: She contends that the federal Constitution's guarantee of equal protection of the law mandates that the tax credit program be revived and applied equally to all private schools, religious and nonreligious alike.
SMITH: Once you have these programs, you have to treat families going to religious schools equal to families going to nonreligious schools.
TOTENBERG: The state of Montana disagrees. It argues that funding public education is the state's mission and that nothing in the federal Constitution mandates that the state enact a tax subsidy for private religious schools. At the heart of the case are what opponents call baby Blaine Amendments, naming them after James G. Blaine, who introduced in Congress a similar amendment to the federal Constitution in 1875. While that original amendment failed to pass, variations of it were adopted in most states. Many scholars view them all as a bigoted reaction to the mass immigration of Catholics into the U.S. in the late 1800s. Lawyer Smith notes that these baby Blaine Amendments have never been squarely challenged in the Supreme Court before.
SMITH: And now they are. And hopefully, the court will take the opportunity to end the bigotry behind these Blaine Amendments.
TOTENBERG: The Montana constitutional amendment, however, is not some relic of the past. Though an earlier provision was adopted in 1889, the state constitution was revised and rewritten in 1972. All but one of the surviving and still active delegates to that convention submitted a brief in this case discussing how the no-aid provision was debated and enacted 48 years ago. Mae Nan Ellingson, one of those delegates, disputes Smith's claim that the convention just rubber stamp the 1889 provision.
MAE NAN ELLINGSON: There was clearly some interest being expressed on behalf of the parochial schools to open up the no-aid provision.
TOTENBERG: So she says a daylong hearing was held with some 100 witnesses presenting written or oral testimony or both. After that, she says, the debate at the convention was extensive, and many argued that keeping the government out of religious education would protect religious liberty and prevent the state from attaching conditions to its aid.
ELLINGSON: We had a number of ministers who were in the convention who spoke very ardently in favor of public funds not going to religious education.
TOTENBERG: In the end, the 1972 constitutional redo passed by a vote of 80 to 17. During the ratification campaign that followed, she says, the no-aid provision was never even a threshold issue. And she notes that the amendment included a provision specifically allowing private religious schools to receive available federal funds through a state pass-through mechanism. She sees today's Supreme Court argument in terms of powers delegated to the states by the federal Constitution, including the power to decide how to finance education. In recent years, as the Supreme Court has grown more and more conservative, it's moved with increasing vigor away from the notion of a strict wall of separation between church and state and towards a greater accommodation of religion. It has, for instance, allowed states to provide vouchers to parents for use in private schools, both religious and nonreligious. But there is a difference between allowing and requiring. This case moves the debate a huge step further, according to Daniel Mach of the ACLU.
DANIEL MACH: In the past, the court, echoing the framers of the Constitution, guarded against government-funded religion. Now the court is actually considering not only allowing but forcing taxpayers to subsidize religious activities.
TOTENBERG: In short, the question in today's case is not whether a state may, if it wishes, provide such aid to private religious schools but whether it must. Nina Totenberg, NPR News, Washington.
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