Espinoza v. Montana Department of Revenue

No. 18-1195 - Argued January 22, 2020
At Issue

Whether a state law that allows for funding for education generally while prohibiting funding for religious schools violates the Religion Clauses or the Equal Protection Clause of the federal Constitution.

  • Richard D. Komer, for the petitioners
  • Jeffrey B. Wall, for the United States, as amicus curiae, supporting the petitioners
  • Adam G. Unikowsky, for the respondents
Background and Case Commentary

Although the lawyering in Espinoza was generally strong, there were some places where, in hindsight, responses could have been crisper and more revealing.

At issue in the case is a school choice program created by the Montana state legislature. Under the program, a taxpayer could receive a dollar-for-dollar tax credit of up to $150 per year for contributions made to a Student Scholarship Organization (SSO). The SSO would then forward the contribution to a Qualified Education Provider (QEP), generally a private school. The state legislation setting up the program did not explicitly exclude religious schools, but it directed the tax department to implement the program consistent with the Montana Constitution. The tax department then promulgated “Rule 1,” which disqualified religious schools as QEPs. To justify the rule, the department relied on a provision of the state constitution that prohibited any tax dollars from flowing directly or indirectly to religious schools. Reviewing that decision, the Montana high court decided that Rule 1 fell outside the statutory authority of the tax department and it invalidated the entire program. The central issues now before the Supreme Court are whether the invalidation of the program violated the Free Exercise Clause, as well as whether taxpayers have standing to bring that claim.

Adam Unikowsky gave a thoughtful argument for Montana. At one point, he confronted the following question by Justice Breyer, and then again by Chief Justice Roberts:

Justice Breyer to Deputy Solicitor General Wall: “Say in San Francisco or Boston or take any city or state, and they give many, many, many millions of dollars to the public school system. And a lot of them give a lot of money to charter schools. Now, they don’t give money to Catholic schools. All right? Now, if — if we decide you’re right, does that all change?” (24–35)

Chief Justice Roberts to Unikowsky: “I’d like to get back to Justice Breyer’s question and get your view you on it which I understand it to be that why doesn’t — do you think the other side’s theory leads to a situation where the funding that goes to public schools, a — a — if — if they prevail, wouldn’t have to go to religious schools?” (32–33)

Unikowsky gave a complicated answer that ultimately conveyed his position effectively. But we think he could have simply said what we propose below.

Espinoza v. Montana Department of Revenue on Oyez:

Key Questions from Oral Argument

Chief Justice Roberts (pp. 32–33; 30:40): I’d like to get back to Justice Breyer's question and get your view you on it which I understand it to be that why doesn't -- do you think the other side's theory leads to a situation where the funding that goes to public schools, a -- a -- if -- if they prevail, wouldn't have to go to religious schools?

Eduardo Peñalver and Nelson Tebbe: Mr. Chief Justice, if this Court adopts the other side’s argument, it will indeed be committing itself to invalidating public school systems—at least insofar as they exclude private schools from support because the states do not wish to fund religious schools. When a state is faced with a conflict between its longstanding commitment to separate church and state in funding, on the one hand, and a free exercise prohibition on singling out religious schools for exclusion from funding, on the other, it may well choose to resolve the conflict by funding public schools only. Such a resolution is supported by a long line of cases that allow some ‘play between the joints’ connecting the Establishment and Free Exercise Clauses. Government may separate church and state more completely than required by the Establishment Clause, as long it does not single out religious entities as such for unfavorable treatment. Here, Montana pursued its commitment to a strong separation of church and state, while respecting free exercise, by eliminating the funding program altogether. Similarly, states may seek to avoid funding religious schools by supporting only the public school system. So ruling against Montana here would imperil that option and, in that way, it would destabilize the public school system.