The Freedom From Religion Foundation is weighing in on the most important state/church case — concerning governmental funding of religious education — before the U.S. Supreme Court this term.
In its concise 18-page friend-of-the-court brief filed this week, FFRF, joined by other secular groups, cogently argues that true religious liberty would be imperiled if the court strikes down a provision of Montana’s Constitution that prohibits official funding of religious education. “If this court . . . invents a constitutional right for religion to dip into the public purse, state-church relations will be altered drastically,” FFRF warns.
The case involves a neo-voucher law passed by the Montana Legislature to provide a dollar-for-dollar tax credit, up to $150, for donors supporting scholarships for private schools. Nearly 90 percent of Montana’s private schools promote a religion. The Montana Department of Revenue, invoking Montana’s constitutional prohibition on funding religion, later issued an administrative rule restricting tax credit eligibility for scholarships to nonreligious private schools. Three Christian parents, represented by the pro-voucher Institute for Justice, sued. The Montana Supreme Court in late 2018 ruled against the parents, invalidating the entire tax credit scholarship program and ruling that the “no aid” provision in the state constitution disallows direct or indirect payments for sectarian education.
In Espinoza v. Montana Department of Revenue, the Christian parent plaintiffs are claiming they have a right, under the free exercise of religion clause of the First Amendment, to raid state money to send students to Christian schools. FFRF’s brief argues that the plaintiffs have it backward: “Religious liberty is imperiled in this case. But this case is not about discrimination; it is about government-compelled support of religion. Every Montana citizen has the right to not be taxed to fund religion.” The brief also asserts, “Religious freedom means that no citizen can be compelled to subsidize a religion that is not their own. If this court abandons this basic principle, we will have reached a disastrous moment in American history: the era of government-compelled tithing.”
The principle embodied in the no aid clause is that the government should not tax citizens to benefit a religion. Religious worship, religious education, and maintaining places of worship should be the result of free and voluntary support given by the faithful, FFRF notes. The brief continues, “James Madison, the father of the Bill of Rights and the Constitution, explained this purpose well in his condemnation of a three-penny tax to support Christian preachers and churches: ‘The religion then of every man must be left to the conviction and conscience of every man,’ not the taxing power of the state.”
The brief points out the Supreme Court’s historic understanding of the First Amendment means that government cannot subsidize religion: “No tax in any amount, large or small, can be levied to support any religious activities or institutions,” as the Supreme Court has decisively ruled. The brief takes up the mantle of defending the rights of all citizens, asserting that “the court ought not to strike down No Aid provisions when they have served this country so well in protecting religious liberty.”
The brief is unique. It eschews legal jargon and gets back to basics. It urges the court to return its focus to where it belongs: not on the Christian parents, but on the government taxing citizens to fund religion.
“The brief is a voice of reason and common sense in a sea of legalese,” says FFRF Co-President Annie Laurie Gaylor. “Anyone can read it and understand that the court must hold, as the Founders did, that no taxpayer can be compelled to financially support a religion that is not her own.”
This is the first major religion case that the Supreme Court has taken since Trinity Lutheran Church of Columbia v. Comer. In that 2017 case, the court ruled that Missouri could not exclude a church from a state program providing scrap tires for playground resurfacing. A decision for the plaintiffs in Espinoza could represent a radical departure from constitutional principles if the court requires government subsidies for express religious activity.
FFRF is joined in the brief by the Center for Inquiry, American Atheists and the American Humanist Association. The counsel of record are FFRF attorneys Andrew L. Seidel, Patrick Elliott and Brendan Johnson.
FFRF also filed an amicus brief this month in a related case before the 1st U.S. Circuit Court of Appeals. In that case, Carson v. Makin, the court is set to resolve the question of whether Maine’s tuition program — which uses secular private schools in limited circumstances to ensure public education is available to students in low-population areas — must be expanded to grant state-funded subsidies to religious schools. FFRF’s brief argues that Maine’s existing distinction between religious and secular private schools protects religious liberty by ensuring that Maine taxpayers are not compelled to support a religion that is not their own.