The Unconstitutionality of Espinoza’s Blue Sky Scholarship Program

In Espinoza v. Montana Department of Revenue,1 the Supreme Court ruled that providing state funds to private secular schools but not private religious schools amounted to unconstitutional discrimination against religion in violation of the Free Exercise Clause.2 In this short piece, I explain how the Court’s decision is inconsistent with its prior Establishment Clause precedents on religious school funding.

Montana offered a tax credit to individuals who donated to a scholarship program for private schools.3 Because the Montana Constitution forbids any government funding of religious schools, the Montana Department of Revenue limited the program to secular schools.4 Parents of children at a Christian school sued, arguing that excluding religious schools violated the Free Exercise Clause.5 The Montana Supreme Court held that the Montana Constitution’s “‘no-aid’ provision barr[ed] government aid to sectarian schools”6 and struck down the entire program.7 The parents appealed, and the Supreme Court held, among other things, that supporting religious schools does not violate the Establishment Clause.8

Espinoza sets a new high-water mark in the Supreme Court’s continuing evisceration of the Establishment Clause. It showed little fealty toward history, ignoring inconvenient facts concerning the Founding Era’s views on taxpayer support of religionand Montana’s reasons for adopting a constitutional bar on state financial aid of religion.10 The Court also summarily dismissed long-standing Establishment Clause goals, declaring that Montana’s interest in keeping church and state separate “cannot qualify as compelling.”11

Finally, the Court ignored its own Establishment Clause precedents on school funding. The Court assumed without any analysis that Montana’s scholarship program abided by the requirements laid down in Zelman v. Simmons-Harris.12 Its entire examination consisted of a single sentence: “Any Establishment Clause objection to the scholarship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.”13

Zelman was another landmark school funding case.14 There, the question was whether funding religious schools violated the Establishment Clause, which had historically been understood to ban government funding of religious institutions, including religious schools.15 The Zelman Court held that voucher programs, which they viewed as indirect funding,16 could be constitutional if two conditions were met.17 First, the funding must be made equally available to both secular and religious entities.18 Second, the funding must reach the religious school as a result of the genuine and independent choice of private individuals.19 Arguably, neither of Zelman’s two requirements is met in the Montana scholarship program.

Montana’s scholarship program differs markedly from Zelman’s voucher program, where the state gave vouchers to parents, who in turn decided which school would receive their voucher. Instead, Montana created a tax incentive program. Citizens donate to a Student Scholarship Organization—Big Sky Scholarships was the one at issue in Espinoza.20 For every dollar donated, the state provides a dollar tax credit to the donor, up to $150.21 In turn, the Student Scholarship Organization, like Big Sky Scholarships, provides scholarships to students at qualifying private schools.22 These differences alone may preclude meeting Zelman’s requirements.23 But even assuming Big Sky Scholarships was analogous in structure to Zelman’s voucher program, as the Supreme Court seems to do, Blue Sky Scholarships fails to satisfy Zelman’s strictures.

Zelman’s first requirement, that the funding be available on an equal basis, would be met if there were the same number of secular and religious schools that received benefits. That was not the case in the Big Sky Scholarships program. Out of the thirteen participating schools, all but one was religious, and the same religion: Christian.24 Moreover, the one secular school that did participate in Big Sky Scholarships25 was focused on children with learning disabilities.26 As Justice Breyer pointed out, 94% of the scholarship payments in 2018 went to religious schools.27 One might argue that the scholarships were made available to secular and religious schools on an equal basis, and only the religious schools took advantage of the opportunity. Still, even for a formalist leaning Supreme Court, that argument may go too far.

Regardless of whether the program fails the first requirement, the Montana program fails the second requirement, that the state funding must reach the religious school as a result of the genuine and independent choice of private individuals. In Zelman, the government gave vouchers to parents, who voluntarily chose where to spend them. Consequently, any religious use of the money would be attributed to the private individual, not the government.28 However, to qualify as voluntary, the choice must be genuine, not coerced.

What makes a decision to direct government money to religious schools genuine rather than coerced? According to Zelman, there must be “no ‘financial incentives’ that ‘skew’ the program towards religious schools.”29 Such unconstitutional incentives were averted in Zelman because the Supreme Court concluded that the program offered government funding for both religious and secular schools.30 In Espinoza, there was no such choice.31 Unless the parents needed a specialized school for a learning disabled child, there are only Christian schools. Thus, the only way that parents could obtain a state-sponsored scholarship to a general-purpose private school was to send their children to a Christian school. Under Zelman, this financial incentive should have precluded a finding of a genuine and independent choice.

Not only does the Montana Program violate the Establishment Clause, it may also violate the Free Exercise Clause after Trinity Lutheran Church of Columbia, Inc. v. Comer.32 In Trinity Lutheran, Missouri created a grant program to improve school playgrounds, but declined to award grants to church-affiliated schools because of the Missouri Constitution’s no-aid provision.33 Announcing an expansive view of the Free Exercise Clause, Trinity Lutheran held this decision amounted to unconstitutional discrimination.34 The churches deprived of government money for their school playgrounds suffered a “penalty” because, according to the Court, “denying a generally available benefit on account of religious identity imposes a penalty on the free exercise of religion.”35 According to the Trinity Lutheran Court, the churches were forced to choose between participating in a government program or giving up their religious identity.36

The Montana program creates the same dilemma, but for parents. Imagine a Jewish family in Montana who wishes to participate in the Tax Credit Program. As a matter of deeply held religious belief, they can neither fund nor have their children attend a school that teaches that Jesus Christ is the Messiah.37 Jewish Montanans must choose between participating in a government program, or giving up their religious identity.38 According to Trinity Lutheran Church, and Espinoza itself,39 that is a free exercise violation. Everyone, not just Christians, should be able “to participate in a government benefit program without having to disavow their religious character.”40

What should Montana do then? If its program violates the Establishment Clause and the Free Exercise Clause, as I argue, and limiting participating schools to secular private schools violates the Free Exercise Clause, as the Supreme Court concluded, then isn’t Montana trapped between a rock and a hard place? One solution is simply to reserve public funds for public schools. In fact, that is exactly what the Montana Supreme Court ruled: the state should eliminate the entire program, so that no private school, secular or religious, receives taxpayer money.41 Given that ruling, the Supreme Court was not actually presented with a fact pattern where Montana was providing funds to secular but not religious schools. As Justice Sotomayor noted, the Court “resolv[ed] a constitutional question not presented.”42 Moreover, as Justice Sotomayor concluded, “[n]ot only is the Court wrong to decide this case at all, it decides it wrongly.” 43


1.                  140 S. Ct. 2246 (2020).

2.                  Id. (“[A] State ‘punishe[s] the free exercise of religion’ by disqualifying the religious from government aid as Montana did here.”).

3.                  Id. at 2251.

4.                  Id. at 2252.

5.                  Id.

6.                  Id.

7.                  Id. at 2353.

8.                  Id. at 2254.

9.                  Id. at 2283 (Breyer, J., dissenting).

10.               Id. at 2287 (Breyer, J., dissenting).

11.               Id. at 2250.

12.               Id. at 2254. Notably, several Justices on the Montana Supreme Court disagreed. See infra note 23.

13.               Id. at 2256.

14.               Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

15.               Id. at 644.

16.               Id. at 649.

17.               Id. at 652 (“[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.”).

18.               Id.

19.               Id.

20.               In fact, Big Sky Scholarships was the only School Scholarship Organization in Montana to participate in the program. Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2251 (2020).

21.               Id. at 2251.

22.               Id.

23.               For example, Justice Gustafson argues that the program violates the Establishment Clause because the recipients of government aid are the donors to the scholarship fund, who receive the tax benefit, and they have no control over what happens to their donation. Consequently, their donation does not reach the religious schools as a result of their genuine and independent choice. Espinoza v. Montana Dep’t of Revenue, 435 P.3d 603, 619–20 (Mont. 2019) (Gustafson, J., concurring).

24.               In addition to several parochial schools, the Blue Sky Scholarships funded the Foothills Community Christian School, the Great Falls Central Catholic High School, Helena Christian School, Heritage Christian School, Mission Valley Christian Academy, Stillwater Christian School, Trinity Lutheran School, Whitefish Christian Academy, and St. Andrew School. Big Sky Scholarship Schools, [].

25.               Espinoza, 435 P.3d at 621 n.6.

26.               Id.

27.               Espinoza, 140 S. Ct. at 2256 (Breyer, J., dissenting).

28.               Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) (“The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.”).

29.               Id. at 653.

30.               Id. at 653–54; see also id. at 655 (noting that the students may “remain in public school with publicly funded tutoring aid [or] obtain a scholarship and choose” a private secular school, among other options).

31.               Cf. id. at 662 (“[The challenged Ohio program] permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.”).

32.               137 S. Ct. 2012 (2017).

33.               Id. at 2017.

34.               Id. at 2021 (“The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”); Id. at 2025 (“But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”).

35.               Id. at 2019.

36.               Id. at 2021–22 (“[T]he Department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.”); Id. at 2024 (“In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit.”).

37.               Furthermore, several of these private schools limit admissions to Christians or give preference to Christians. Brief of Religious & Civil-Rights Organizations as Amici Curiae in Support of Respondents, at *23–24, Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2251 (2020) (No. 18-1195).

38.               Trinity Lutheran, 137 S. Ct. at 2021–22 (“[T]he Department’s policy puts [Jewish Montanans] to a choice: [They] may participate in an otherwise available benefit program or remain a[n] [observant Jew].”).

39.               Espinoza, 140 S. Ct. at 2261 (“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”).

40.               Trinity Lutheran, 137 S. Ct. at 2022.

41.               Espinoza, 140 S. Ct. at 2256.

42.               Id. at 2292 (Sotomayor, J., dissenting).

43.               Id.

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