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At the U.S. Supreme Court today, the conservative majority seemed ready to invalidate a provision of the Montana state constitution that bars aid to religious schools. A decision like that would be a sea change in constitutional law, significantly removing the longstanding high wall of separation between church and state. NPR legal affairs correspondent Nina Totenberg reports.
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NINA TOTENBERG, BYLINE: The long line on a freezing-cold day in the packed courtroom all were evidence of how important this case is. At issue is a ruling by the Montana Supreme Court that struck down a tax subsidy for both religious and non-religious private schools. The Montana court said that the subsidy violated a state constitutional provision barring any state aid to religious schools, whether direct or indirect. On the steps of the Supreme Court today, Kendra Espinoza, a divorced mother of two, explained why she's challenging that ruling.
KENDRA ESPINOZA: At home, we're a Christian family, and I want those values taught at school. I think that our morals as a society come from the Bible. I feel that we're being excluded simply because we are people of religious background.
TOTENBERG: Thirty-seven other states have no-aid state constitutional provisions similar to Montana's. And for decades, conservative religious groups and school choice advocates have sought to get rid of them. Today, though, that goal looked a lot closer. Five of the justices at some time in their lives attended private Catholic schools, and some of them were particularly vocal. Justice Brett Kavanaugh said that the history of excluding religious schools from public funding has its roots in the, quote, "religious bigotry against Catholics in the late 1800s." He seemed to dismiss arguments made by the state's lawyer that Montana had completely rewritten its constitution in 1972 without any such bias. Mae Nan Ellingson, one of the delegates to that convention, was at the court today.
MAE NAN ELLINGSON: There were ministers and people that were delegates have all religious faith, all of whom supported this no-aid provision. We didn't think that public funds should be used to support private parochial education. But, rather, the public funds needed to support public education, which is totally equal to all in Montana.
TOTENBERG: But the justices seemed uninterested in that record. Chief Justice Roberts and Justice Alito compared the exclusion of parochial schools from taxpayer-funded aid programs to unconstitutional discrimination based on race. Today's case, unlike those in the past, involves the potential for much broader public funding of parochial schools. It wasn't enough, for instance, that the state court treated all private schools the same way, whether they were religious or not. As Justice Kagan put it, once the Montana court invalidated that tax subsidy for all private schools, weren't they all, quote, "in the same boat?" No, replied lawyer Richard Komer, representing the religious parents. He maintained that the no-aid provision in the state constitution is itself a violation of the federal Constitution. And he also argued that because the state constitution illegally discriminated against religious schools and families, the tax credit program must be kept alive. The state cannot abolish it. That would be a radical decision, said Justice Sotomayor.
Justice Breyer wondered where the plaintiffs' equal treatment argument would end. He noted that major school systems spend billions in taxpayer money to fund the public schools. If I decide for you, he asked, would these school systems have to give proportionate amounts to parochial schools? Deputy Solicitor General Jeffrey Wall, representing the Trump administration, basically answered yes. You can't deny a generally available public benefit to an otherwise qualified institution based solely on its religious character, he said. Representing the state of Montana, lawyer Adam Unikowsky told the justices that states generally have had the power to decide that they're only going to fund the public school system. But Justice Kavanaugh repeatedly seemed to suggest that religious families who want to send their children to parochial schools should be treated equally under the Constitution. Just how far the Supreme Court will go in that regard may depend on Chief Justice Roberts, who, after a long night at the impeachment trial, did not entirely tip his hand.
Nina Totenberg, NPR News, Washington.
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