WASHINGTON -- The Supreme Court on Wednesday debated a rule that questions whether states can exclude religious schools from state programs that provide scholarships to students attending private schools.
Chief Justice John Roberts seemed to be searching for a limiting principle, one that would allow the scholarships but stop short of requiring state support for religious education in other contexts. Justice Stephen Breyer, a member of the court's more liberal wing, asked questions along the same lines.
The case concerns a Montana program enacted in 2015 "to provide parental and student choice in education." The program was financed by private contributions eligible for tax credits, and it provided scholarships to students in private schools.
In Montana, that meant religious schools: 12 of the 13 schools that participated in the program were religious, and one was a school for children with disabilities.
In one year, 94% of the scholarships went to religious schools.
Soon after the program started, a state agency said students attending religious schools were not eligible in light of a provision of the state's constitution that bars the use of government money for "any sectarian purpose or to aid any church, school, academy, seminary, college, university or other literary or scientific institution, controlled in whole or in part by any church, sect or denomination."
Three mothers with children at Stillwater Christian School, in Kalispell, Mont., sued, saying that provision of the state constitution violated the protections of religious freedom guaranteed by the First Amendment of the U.S. Constitution.
Several conservative justices appeared to agree.
"It's permissible to discriminate on the basis of religion," Justice Samuel Alito told the state's lawyer, Adam Unikowsky. "That's what you're saying."
Justice Brett Kavanaugh, whose two daughters attend Catholic schools, referred to the "grotesque religious bigotry" against Catholics that he said motivated the original adoption of the Montana provision and others like it in the 1800s, although Montana's constitution was redone in 1972.
The liberal justices saw the case very differently. Justice Ruth Bader Ginsburg was among those who said that by ending the program for private secular and religious schools alike, the Montana court was treating all parents the same. "So where's the harm?" Ginsburg asked.
The Montana Supreme Court had ruled against the parents, shutting down the entire program for all schools, religious or not.
In 2017, in Trinity Lutheran Church v. Comer, the Supreme Court ruled that Missouri had violated the First Amendment by barring religious institutions from a state program to make playgrounds safer, even though the state's constitution called for strict separation of church and state.
"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," Roberts wrote for the majority.
At the same time, writing for four justices, Roberts emphasized the narrowness of the court's decision. "This case involves express discrimination based on religious identity with respect to playground resurfacing," he wrote. "We do not address religious uses of funding or other forms of discrimination."
A 2004 Supreme Court decision, Locke v. Davey, allowed Washington state to offer college scholarships to all students except those pursuing degrees in devotional theology.
That case involved direct support for religion, Roberts wrote in 2017. Playgrounds, he argued, were a different matter.
A Section on 01/23/2020