BY JACK RODGERS
WASHINGTON (CN) — Montana tax officials courted Supreme Court defeat Wednesday at a hearing where Justice Brett Kavanaugh traced the state’s ban on public funding of religious schools to “grotesque religious bigotry against Catholics.”
Three moms of children who attend the Stillwater Christian School in Kalispell brought the suit here in 2015. That year the Montana Legislature had passed a law offering dollar-for-dollar credits, up to $150, to taxpayers who donated scholarships to certain state educational programs.
Most private schools in Montana are religious, however, and state tax officials quickly adopted a restriction so that religious schools were not eligible for the scholarship program.
Kendra Espinoza and the other mothers took their fight to Washington after the state Supreme Court invalidated the entire credit program, rather than address the religious exclusion, thereby skirting the constitutional issue.
Those issues dominated Wednesday as Jenner & Block attorney Adam Unikowsky defended the tax-credit restrictions.
“Look, if a state constitution had a provision saying that like historically black colleges aren’t entitled to any aid at all, that would obviously be facially unconstitutional,” Unikowsky said.
“The answer is, I think if you accept that no-aid clauses are not facially unconstitutional … then you have to accept that it’s at least permissible for a state to say, for principled reasons deeply rooted in national tradition dating back to Madison, we have a preference to not fund religious activities — not prohibit it, but not fund it.”
Justice Samuel Alito disagreed with this distinction.
“But there’s a difference between saying we’re not going to fund religious activities and saying we’re going to discriminate based on religion. That’s the point,” Alito said. “The question is if there is a program that is designed to serve certain purposes, can they discriminate in deciding who’s going to get the benefit of it on the basis of religious affiliation.”
Justice Sonia Sotomayor meanwhile invoked the fourth president as well.
“We have a founding father, Madison, lobbying heavily for the free-exercise clause and equally to stop states from both establishing religions or using public funds to support them,” Sotomayor said.
“There’s been, since the founding fathers, a long history of people who for non-discriminatory reasons, but for reasons related to their belief in the separation of church and state, that they have taken the position that the state should not give money to religious institutions.”
Led by Kendra Espinoza, the families appeared to curry favor from the court’s conservative wing but faced skepticism on the left about their standing to sue.
“Under the Montana judgment, these parents are treated no differently than parents of children who are going to secular private schools, so where is the harm,” asked Justice Ruth Bader Ginsburg.
Justice Elena Kagan made a similar argument, saying the ruling from the Montana Supreme Court had ended the program for everyone.
“Whether you go to a religious school or you go to a secular private school, you’re in the same boat at this point,” Kagan said.
Richard Komer, an attorney for the families with Institute of Justice, said his clients still suffered a harm.
“You can’t let the remedy shield the discriminatory judgment,” Komer said.
Ginsburg meanwhile pointed out that the moms in this suit are not eligible for the tax credit since they did not donated to a scholarship.
“Taxpayers are the people who contribute to these student scholarship organizations,” Ginsburg said. “And this court has held that there is no standing to challenge somebody else’s tax status.”
Unikowsky denied that the parents can show harm from the no-aid clause.
“I mean, we believe there’s an attenuated connection between the state action here and the petitioners’ free exercise of religion, but petitioners are alleging in their brief that they personally are the victims of status discrimination because they are Christians,” Unikowsky said. “We think that’s wrong based on what the state court actually did, but historically the courthouse doors have been open to make that kind of argument.”
He insisted that the tax-credit restrictions sought merely to balance the nation’s anti-discrimination principals with anti-discrimination goals.
“If we have these two principles, these principled non-bigoted and historically rooted views that we don’t want to fund religious activity on the one hand and the First Amendment, which clearly guards against coercion and penalizing religious faith on the other, the way we’re going to balance it is to do what the state court did.”
Komer on the other hand urged the justices to correct the misapplication of precedent that occurred with the lower court’s ruling.
“The Montana Supreme Court lacked the necessary predicate for leveling up or for leveling down because they got the federal Supreme Court question wrong,” Komer said. “But for getting that question wrong, we would never have moved on to the issue of remedying that problem, because it isn’t a constitutional problem.”
Principal Deputy U.S. Solicitor General Jeffrey Wall also argued at the hearing as a friend of the court, supporting the Montana parents.
Wall referenced the court’s 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, which called it unconstitutional to exclude churches couldn’t be excluded from otherwise neutral and secular aid programs.