When I moderated a debate on Espinoza v. Montana Dep’t of Revenue , I had a question for one of the Institute for Justice lawyers who represents Ms. Espinoza (and others, including Linda Greenhouse, had asked the same question as well). Here’s the issue: A Montana school choice programs let parents use certain tax credits to pay for education at private schools, whether religious or secular. The Montana Supreme Court held that this violates a Montana Constitution provision, which bars the government from making "any direct or indirect appropriation or payment from any public fund … for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination." But rather than limiting the tax credit program to apply only to nonreligious private schools (which would have been much like what the Missouri government had done for the playground resurfacing grants in Trinity Lutheran Church v. Comer (2017) ), the Montana court struck down the tax credit program altogether, as applied to secular schools as well as religious ones. The plaintiffs argue that this decision violates the Free Exercise Clause […]
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