Montana created a program whereby donors to organizations that award scholarships for private school tuition may receive tax credits to be used towards such tuition. The Montana Department of Revenue promulgated “Rule 1”, which barred families from using the tax credits at religious schools. The idea was that this would reconcile the scholarship program with a provision of the state constitution that prohibited state aid to religious or sectarian schools. A high percentage of private schools in Montana were religious schools.

Three children sought but were prevented from using their scholarship funds at Stillwater Christian School. They brought suit in state court. The state court enjoined enforcement of Rule 1. The Montana Supreme Court held that the program, unmodified by Rule 1, violated the no-aid provision of Montana’s constitution. The Court then invalidated the entire program.

The U.S. Supreme Court held that, once a state makes a scholarship program generally available to private schools, it cannot discriminate against religious schools. The Court based its ruling in the free exercise clause of the First Amendment.

The Court acknowledged that there is some “play in the joints” between the Establishment Clause and the Free Exercise Clause of the First Amendment. That is, there are some state actions with respect to religion that do not violate the Establishment Clause and are not required by the Free Exercise Clause.

However, the Court likened this case to one in which Missouri denied a grant to a religious school for playground resurfacing but provided grants to similarly situated non-religious groups. The Court held that this violated the Free Exercise Clause. Children at Religious schools have the same need for protection against scrapes knees as others.

The Court distinguished the case from one in which a Washington resident was denied scholarship funds to pursue training for the clergy. In that case, the Court upheld the denial, holding that there was a substantial and historic state interest against subsidizing the training of clergy. But in this case, the provision of scholarship funds did not zero in on any essentially religious course of instruction.

In a concurrence, Justice Thomas set forth his belief that the religion clauses of the U.S. Constitution should not have been interpreted under the Fourteenth Amendment to have been incorporated as applying to the states, but only the federal government.

He took issue with the Court’s long-standing approach of a “benevolent neutrality” towards religion, arguing that this is not required by the constitution and that the government may favor religion in general over non-religion. He lamented that individual taxpayers are granted standing by the Court to bring Establishment Clause lawsuits.

Justice Alito wrote a concurring opinion describing the history of the infamous nineteenth century Blaine Amendment, which sought to deny state aid to parochial schools. It is generally understood that the Blaine Amendment was motivated by anti-Catholicism during an era in which animosity towards Catholic immigrants was at a peak. Nevertheless, although the Blaine Amendment failed at the federal level, about 38 states passed similar no-aid provisions. Justice Alito expressed his concern that the Montana no-aid provision was motivated by religious animus.

Justice Ginsberg wrote a dissent in which she argued that the petitioners had suffered to undue burden on their free exercise of religion because they still had the right to send their children to religious schools even if they received no scholarship funds. And because the Montana Supreme Court invalidated the entire scholarship program, the petitioners were not put to a Hobson’s choice of declining to send their children to a religious school or receiving no scholarship funds at all. There simply were no scholarship funds to be had.

Justice Breyer penned a dissent in which he expressed concern for individual liberty and communal harmony from taxpayer support for religious education. He stated his belief that religion clause cases should be decided on a case-by-case basis without adherence to any rigid legal doctrine.

Justice Sotomayor dissented on the grounds that the Court need not have decided the case at all. She expressed her belief that once the Montana Supreme Court invalidated the entire scholarship program, it eliminated any discrimination and that there was nothing left to decide.

In the case of Little Sisters of the Poor v. Pennsylvania, the Supreme Court upheld exemptions to ACA’s (popularly known as Obamacare) requirement to provide contraception coverage for religious employers that object based on sincerely held religious beliefs and employers that have a sincerely held moral objection to providing some or all forms of contraception coverage. Honestly, how could you rule against a group known as “Little Sisters of the Poor.” Kudos to the Supremes for upholding freedom of conscience in this case.

In Our Lady of Guadalupe v. Morrissey-Beru, the Supreme Court held that the “ministerial exception rule”, determined by the Court to be required by the Free Exercise Clause of the First Amendment, foreclosed certain employment related lawsuits by elementary school teachers against the religious schools at which they were employed. One of the cases was an age discrimination case and the other was one in which an employee claimed she was terminated for requesting a leave of absence to receive breast cancer treatments. The Court noted the bedrock principle that the First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government, as well as those of faith and doctrine.”