FFRF awarded Jessica $3,000 for her essay.
By Jessica Gaudette-Reed
Montana’s no-aid provision protects, rather than injures, religious exercise by ensuring government does not become inserted into “the everyday affairs of religious institutions and organizations.” It ensures the promise of equal protection under the 14th Amendment while simultaneously guaranteeing the right of Montanans to abstain from coerced religious practice. In the alternative, the provision protects those who do choose to worship from potential governmental influence over the content of their religious message. Far from being a burden on religious exercise, Montana’s no-aid provision benefits both religious and irreligious Montanans and respects the liminal space between the religion clauses.
Montana’s no-aid provision has been attacked by proponents of religious school funding as unconstitutional on the grounds that it infringes their free exercise of religion and impermissibly discriminates against religious persons seeking taxpayer-funded scholarships based solely on their religion. However, this interpretation does not fit the jurisprudential landscape that the Espinoza case is situated in. The petitioners claim religious animus is constitutive of the no-aid provision, but, contrary to their assertion, the provision was viewed by the delegates of the 1972 Montana Constitutional Convention as a vehicle for “equal educational opportunity” for every child in Montana’s public schools. In fact, the view that public funds should only be appropriated for public uses was widely held at the 1972 Convention. Further, delegates — several of whom were important church leaders in their communities — saw the potential danger government influence could pose to religious expression, with one stating that, “the control which comes with aid could excessively involve the state in religious matters and could inadvertently favor one religious group ever another.”
The delegates were not operating in a legal vacuum. One year prior to the ratification of the 1972 Constitution, the Supreme Court held in Lemon v. Kurtzman that a statute “must have a secular legislative purpose, its principal or primary effect must be one that neither promotes nor inhibits religion, and it must not foster ‘excessive government entanglement with religion.’” Clearly, here, Montana’s present-day no-aid provision meets this test. The provision was passed with the intent of supporting a robust public-school system. It had the dual purpose of removing any government influence from religious exercise. The delegates included a separate clause to accommodate a pass through of federal funding to private sectarian schools so as to not create a constitutional conflict.
There have been numerous Free Exercise and Establishment Clause decisions since 1972, however. Notably, petitioners claim this case is analogous to Trinity Lutheran v. Comer, where the Supreme Court found that the Missouri Department of Natural Resources had acted unconstitutionally when it denied a generally available grant for playground resurfacing material to a religiously affiliated daycare.
The only analogy between Trinity Lutheran and this case is that the petitioners claim infringement of their First and 14th Amendment rights. In Trinity Lutheran, the petitioners were faced with an ultimatum: Either become secular to receive the grant or remain sectarian and forego the funding. There is no such ultimatum in this case. The students are not being penalized for their choice of a private sectarian school because children in private secular schools also don’t receive the benefit. The distinction was never made around religion or irreligion. It is a function of private versus public schools — a subject that is well-established as being within the purview of state responsibility.
The petitioners’ reliance on the Trinity Lutheran decision is telling, though. They claim a violation of Equal Protection and attempt to have the classification in this case brought under the strict scrutiny standard enumerated in Trinity Lutheran. They claim that, by dismantling the 12 scholarships in their entirety, Montana has burdened their religious practice. When a law denies the same opportunity to compete for or enjoy an otherwise generally available benefit — one that is available to secular organizations — the state violates the Equal Protection Clause and the statute is subject to strict scrutiny. There is no denial of a benefit based on religion here because the benefit no longer exists. By dismantling the program, Montana placed secular and sectarian schools back on equal footing.
If, however, we look deeper at the no-aid provision and subject it to strict scrutiny, it still passes muster. Montana adopted the provision to achieve a “strong, universal, and free educational system.” As discussed above, educational choice is a compelling state interest. Further, the no-aid provision was adopted with narrow-tailoring in mind. The delegates created a pass-through for federal aid and maintained tax exemptions for “institutions of purely public charity” including religious ones.
If Montana’s no-aid provision was not narrowly tailored to achieve a compelling governmental interest, it is unclear what it would take to draft a clause that does.
Finally, the petitioners claim that the case most analogous to this one, Locke v. Davey, was superseded by Trinity Lutheran and that Locke provides a narrow exception to the rule of religious neutrality. That is simply not the case. The Locke court held that it was permissible for a state to limit a scholarship program so as to not entangle government and religion.
Like in Espinoza, there is a lack of religious animus in the state constitution. Further, the state chose to not fund a category of instruction — in this case private schools. There is “no there there.” However, for the sake of argument, assume that Montana agreed to allow the scholarships continue for all secular subjects. Then, there would be a violation of the entanglement prong of the Lemon test because of the amount of oversight required, just as in Levitt v. Committee for Public Education.
Montana’s no-aid provision is constitutional under the First and 14th Amendments. The state’s support of religion rests in the “play in the joints” between the Establishment and Free Exercise Clauses.
It promises equal protection to both the religious and irreligious by not favoring one sect over another or theists over atheists. It was framed and ratified by the people of Montana who had concerns about maintaining a strong public-school system and eschewing government insertion into religious practice. It is a protection — a shield — one that the petitioners seek to use as a weapon to chip away at the boundary between church and state.
Jessica is a third-year law student at the University of Florida Levin College of Law. She attended Portland State University as an undergrad and got a B.A. in history and an African Studies certificate. Prior to attending college, she served in the U.S. Army. After law school, she is commissioning into the Navy JAG Corps.