In its opinion in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships, the majority held that the scheme must be afforded to religious schools so that the Free Exercise Clause was not violated. Recall that the Montana Supreme Court held that the tax credit program’s application to religious schools was unconstitutional under its state constitution, Art. X §6 , which prohibits aid to sectarian schools. This type of no-aid provision is often referred to as (or similar to) a Blaine Amendment and frequently appears in state constitutions. In a closely-divided decision, the Court decided that the Montana Supreme Court’s decision that the tax credit program could not be extended to religious schools should be subject to struct scrutiny under the First Amendment’s Free Exercise Clause and did not survive. (The Court therefore stated it need not reach the equal protection clause claims). The Court essentially found that this case was more like Trinity Lutheran Church of Columbia v. Comer (2017) (involving playground resurfacing) and less like Locke v. Davey, 540 U.S. 712 (2004), in which the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary […]
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