I shall explain why I disagree. Many provide assistance to families with students in nonpublic schools, ranging from scholarships to tax credits and deductions that reimburse tuition expenses. What, then, is the difference between Locke and the present case? Trinity Lutheran, 582 U. S., at ___ (slip op., at 12). The Court’s distorted view of the Establishment Clause, however, removes the entire subject of religion from the realm of permissible governmental activity, instead mandating strict separation. But, as so many of our cases explain, the Free Exercise Clause doesn’t easily tolerate either; any discrimination against religious exercise must meet the demands of strict scrutiny. The Montana Legislature also directed that the program  be administered in accordance with Article X, section 6, of the Montana Constitution, which contains a “no-aid” provision barring government aid to sectarian schools. For the reasons stated, supra, at 2–3, it does not. Invoking that principle in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017), the Court observed that disqualifying an entity from a public benefit “solely because of [the entity’s] religious character” can impose “a penalty on the free exercise of religion.” Id., at ___–___ (slip op., at 9–10). I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. See Van Orden, 545 U. S., at 697 (Breyer, J., concurring in judgment) (listing examples). See Good News Club v. Milford Central School, 533 U. S. 98, 112 (2001); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 394 (1993); Widmar v. Vincent, 454 U. S. 263, 271 (1981). As the Court acknowledged in Trinity Lutheran, however, that does not answer the question whether providing such aid is required. On June 30, 2020, the U.S. Supreme Court decided one of the most important education reform cases in the past half-century. See Reply Brief 8. Montana’s no-aid provision was the result of this same prejudice. The government does not put a gun to the head, only a thumb on the scale. 446, 435 P. 3d 603, reversed and remanded. ESPINOZA v. MONTANA DEPT. A few examples suffice to illustrate this practice. 4  Locke confirms that a facial challenge to no-aid provisions must fail. 83 (1877); N. M. That rule respects not only federalism, but also the separation of powers. of Central School Dist. Upon receiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholarship funds directly to the school. Reply Brief 22, n. 9. The descriptions are not accurate. of Kiryas Joel Village School Dist. The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution. Pol’y 551, 566, 570 (2003); see also, e.g., Becket Fund Brief 5–11. (5th ed. But the no-aid provision penalizes that decision by cutting families off from otherwise available benefits if they choose  a religious private school rather than a secular one, and for no other reason. Involvement in such spiritual matters implicates both the Establishment Clause, see Cutter, 544 U. S., at 714, and the free exercise rights of taxpayers, “denying them the chance to decide for themselves whether and how to fund religion,” Trinity Lutheran, 582 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 17). Yet, in a Nation with scores of different religions, many such disagreements are possible. At the same time, our history and federal constitutional precedent reflect a deep concern that state funding for religious teaching, by stirring fears of preference or in other ways, might fuel religious discord and division and thereby threaten religious freedom itself. The basis of the decision below was a Montana constitutional provision that, according to the Montana Supreme Court, forbids parents from participating in a publicly funded scholarship program simply because they send their children to religious schools. And petitioners have testified that it is a “major reason” why they chose religious schools for their children. Justice Breyer, with whom Justice Kagan joins as to Part I, dissenting. 152. Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax-credit program entirely. See Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. And as the Court’s recent precedent holds, at least some teachers in religiously affiliated schools are ministers who inculcate the faith. WASHINGTON – The Supreme Court ruled in favor of three low-income Montana mothers today, reviving a state tax-credit program designed to generate private scholarships for Montana students to attend private schools of their choice. ), the Court sidesteps these obstacles by asking a question that this case does not raise and that the Montana Supreme Court did not answer: whether by excluding “religious schools and affected families from [a scholarship] program,” Montana’s no-aid provision was “consistent with the Federal Constitution,” ante, at 7 (majority opinion). Id., at 607–608. . [7][3][23] At the time of the decision 17 states had scholarship programs similar to Montana's, though some like Florida and Indiana had already found means to allow such funds to be used for selection of religious schools despite no-aid clauses in their constitutions. Argued January 22, 2020—Decided June 30, 2020. See Zelman, 536 U. S., at 728 (Breyer, J., dissenting). The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. There simply are no scholarship funds to be had. This was so, the Court said, in part because it furthered the State’s “antiestablishment interests” in avoiding the education of religious ministers. Montana’s interest in public education cannot justify a no-aid provision that requires only religious private schools to “bear [its] weight.” Ibid. See, e.g., Sen. Daines Brief 1–3 (describing a riot over an anti-Catholic sign hung over a Butte saloon on Independence Day, 1894). Justice Sotomayor would grant the government “some room” to “single . ESPINOZA et al. 4 Cir. Local governments provided grants to private schools, including religious ones, for the education of the poor. See, e.g., U. S. to Pet. Const., Art. The majority’s rule provides no guidance, even as it sharply limits the ability of courts and legislatures to balance the potentially competing interests that underlie the Free Exercise and Antiestablishment Clauses. That amendment was rejected. Declining to rewrite the statute to exclude those schools, the state court struck the program in full. Returning the Establishment Clause to its proper scope will not completely rectify the Court’s disparate treatment of constitutional rights, but it will go a long way toward allowing free exercise of religion to flourish as the Framers intended. Marbury v. Madison, 1 Cranch 137, 178 (1803). That condition on a public benefit discriminates against the free exercise of religion. We do not consider any alterations the Legislature may choose to make in the future. Ms. Espinoza and two other mothers with children at Stillwater sued, and the Montana Supreme Court ruled against them, shutting down the entire program for all schools, religious or not. “Faced with public schools that were culturally Protestant and with curriculum[s] and textbooks that were, consequently, rife with material that Catholics and Jews found offensive, many Catholics and Orthodox Jews created separate schools,” and those “who could afford to do so sent their children to” those schools.16. Thirty-eight States still have these “little Blaine Amendments” today. Locke, 540 U. S., at 720–721 (citing McDaniel v. Paty, 435 U. S. 618, 626 (1978)); see ante, at 11–12. v. Virginia Citizens Consumer Council, Linmark Assoc., Inc. v. Township of Willingboro, Central Hudson Gas & Electric Corp. v. Public Service Commission, Consol. Montana thereafter adopted its constitutional rule against public funding for any school “controlled” by a “sect.” Mont. Effectively, the court told the state legislature and parents of Montana like Ms. Espinoza: You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. See id., at 17–26 (collecting several articles). I, §5 (1857); S. D. The provision’s “uncomfortable past” must still be “[e]xamined.” 590 U. S., at ___, n. 44 (opinion of the Court) (slip op., at 14, n. 44). And here, it is not so clear that the animus was scrubbed. But as previously explained: “Where a law otherwise is untethered to [discriminatory] bias—and perhaps also where a legislature actually confronts a law’s tawdry past in reenacting it—the new law may well be free of discriminatory taint.” Ramos, 590 U. S., at ___ (Sotomayor, J., concurring in part) (slip op., at 4). Id., at ___ (slip op., at 14). School Dist. True, on occasion this Court has resolved federal constitutional questions when it was unclear whether the state-court judgment rested on an adequate and independent state-law ground. Locke, 540 U. S., at 725. This diversity of opinion made no difference in Locke and it makes no difference here. Nat'l Socialist Party v. Village of Skokie, United States v. Thirty-seven Photographs, United States v. 12 200-ft. Reels of Film, American Booksellers Ass'n, Inc. v. Hudnut. Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. A State’s interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause . II, §11). None of this is meant to suggest that we agree with the Department, Brief for Respondents 36–40, that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. See, e.g., American Legion, 588 U. S., at ___ (opinion concurring in judgment) (slip op., at 1); Town of Greece, 572 U. S., at 604 (opinion concurring in part and concurring in judgment). Code Ann. Locke differs from this case in two critical ways. Cf., e.g., J. Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in Everson v. Board of Ed. To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation. v. Newdow, 542 U. S. 1, 49–50 (2004) (Thomas, J., concurring in judgment). See Brief for Respondents 16–27; 6 Montana Constitutional Convention 1971–1972 Proceedings and Transcript, pp. There appears to have been no doubt which schools that meant. The Department, for its part, asserts that the no-aid provision actually promotes religious freedom. And even if Montana had done more to address its no-aid provision’s past, that would of course do nothing to resolve the bias inherent in the Blaine Amendments among the 17 States, by respondents’ count, that have not readopted or amended them since around the turn of the 20th century.20. 115, 122 (1992). The feelings of the day are perhaps best encapsulated by this famous cartoon, published in Harper’s Weekly in 1871, which depicts Catholic priests as crocodiles slithering hungrily toward American children as a public school crumbles in the background: The resulting wave of state laws withholding public aid from “sectarian” schools cannot be understood outside this context. To reconcile the program with a provision of the Montana Constitution that bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. ); see V. Muñoz, God and the Founders: Madison, Washington, and Jefferson 21–22, 27 (2009). Const., Art. And, central to the issue here, he certainly does not identify a consistent early tradition, of the sort invoked in Locke, against support for religious schools. The origin of Montana’s “no-aid” provision, Mont. In terms that speak equally to our case, the Court explained that the government tests the Free Exercise Clause whenever it “conditions receipt of an important benefit upon conduct proscribed by a religious faith, or . Kendra Espinoza, the lead petitioner in this case, is a single mother who works three jobs. No. 1  A party wishing to expand the scope of the Establishment Clause beyond its meaning at the founding carries the burden of demonstrating that this broader reading is historically sound. Trinity Lutheran, 582 U. S., at ___. v. MONTANA DEPARTMENT OF REVENUE et al. . How would the majority’s rule distinguish between those States in which support for charter schools is akin to public school funding and those in which it triggers a constitutional obligation to fund private religious schools? "[22], The Espinoza decision is seen likely to impact subsequent rules in the 38 states with Blaine amendments. Boy Scouts of America v. Dale, 530 U. S. 640, 660 (2000). App. 446, 468, 435 P. 3d 603, 614 (2018). [7], The Court issued its decision on June 30, 2020. ); see also Brief for Respondents 18; Tr. (recalling the “[t]orrents of blood” shed in efforts to establish state religion). Hist. Laws p. 2186, §33. The Department suggests that the no-aid provision safeguards public education by ensuring that government support is not diverted to private schools, but that interest does not justify a no-aid provision that requires only religious private schools to bear its weight. But the Court concluded that the Free Exercise Clause did not require it to do so. The U.S. Supreme Court determined in Espinoza v. Montana Department of Revenue on Tuesday that restricting public scholarships from being used to pay religious school tuition was a violation of the First Amendment freedom of religion. It communicates a message that religion is dangerous and in need of policing, which in turn has the effect of tilting society in favor of devaluing religion. Id., at ___. This prohibition is far more sweeping than the policy in Trinity Lutheran, which barred churches from one narrow program for playground resurfacing—causing “in all likelihood” only “a few extra scraped knees.” 582 U. S., at ___ (slip op., at 15). And the Montana Supreme Court explained that the provision forbids aid to any school that is “sectarian,” “religiously affiliated,” or “controlled in whole or in part by churches.” 393 Mont., at 464–467, 435 P. 3d, at 612–613. X, §6(1) (1972), is emphasized in petitioners’ brief and in the briefs of numerous supporting amici. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. 7  Green, The Blaine Amendment Reconsidered, 36 Am. Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians.11. It provided a modest tax credit to individuals and businesses who donated to nonprofit scholarship organizations. Rule §42.4.802(1)(a) (2015). See 377 U. S., at 223. The Court correctly concludes that Montana’s no-aid provision expressly discriminates against religion in violation of the Free Exercise Clause. The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. In … Const., Art. of Prince Edward Cty., 377 U. S. 218 (1964), for the proposition that eliminating a public benefit does not always remedy discrimination. Petitioners remain free to send their children to the religious school of their choosing and to exercise their faith. Some who supported this kind of government aid thought it posed no threat to freedom of conscience; others denied that provisions for aid to religion amounted to an “establishment” at all. of Westside Community Schools (Dist. “Perhaps the most famous example,” Locke, 540 U. S., at 722, n. 6, is the 1786 defeat of a Virginia bill (often called the Assessment Bill) that would have levied a tax in support of “learned teachers” of “the Christian Religion.” A Bill Establishing a Provision for Teachers of the Christian Religion, reprinted in Everson, 330 U. S., at 72 (supplemental appendix to dissent of Rutledge, J.). Previously, this Court recognized that a “prophylactic rule against the use of public funds” for “religious activities” appropriately balanced the Religion Clauses’ differing but equally weighty interests. In the years since the Civil War, the number of religions practiced in our country has grown to scores. No. The case, Espinoza v. Locke, 540 U. S., at 720 (citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 535 (1993)); see ante, at 11. Accepting the majority’s distinction between public and nonpublic schools does little to address the uncertainty that its holding introduces. It holds that the Free Exercise Clause forbids a State to draw any distinction between secular and religious uses of government aid to private schools that is not required by the Establishment Clause. In response, Espinosa asked the court to enforce the confirmation order by directing the Department and United to cease any collection efforts. 2015 Mont. Givhan v. Western Line Consol. U. S. & Mary L. Rev. OF REVENUE393 Mont. Scholarship organizations like Big Sky must, among other requirements, maintain an application process for awarding the scholarships; use at least 90% of all donations on scholarship awards; and comply with state reporting and monitoring requirements.

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