WASHINGTON — The Supreme Court on Wednesday seemed poised to rule that states may not exclude religious schools from state programs that provide scholarships to students attending private schools.
Chief Justice John G. Roberts Jr., looking none the worse for wear after a late night presiding over the impeachment trial of President Trump, 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.
“I wonder,” the chief justice said, “if there’s a difference between general funding of the public schools and the decision to provide aid to private schools, except not religious schools.”
Justice Stephen G. Breyer, a member of the court’s liberal wing, asked questions along the same lines.
Jeffrey B. Wall, a lawyer for the federal government arguing in favor of the scholarship program, offered a limiting principle that seemed to respond to their concerns: If state aid is made available to private schools, religious ones may not be excluded. But government spending on public schools, he added, does not require aid to private schools, religious or not.
The case involves 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 percent 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 United States Constitution.
The Montana Supreme Court ruled against them, shutting down the entire program for all schools, religious or not.
Richard D. Komer, a lawyer with the Institute for Justice, which represents the plaintiffs, said the question for the justices was straightforward. “This case asks whether the federal Constitution allows the wholesale exclusion of religious schools from scholarship programs,” he said. “It does 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,” Chief Justice Roberts wrote for the majority.
At the same time, writing for four justices, Chief Justice 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.”
Mr. Wall said the Trinity Lutheran decision should require the court to sustain the Montana program. Justice Elena Kagan responded that the two cases presented different issues.
Noting that she had been in the majority in Trinity Lutheran, Justice Kagan said it was one thing to exclude religious institutions from “a completely secular public benefit” and another “to subsidize religious education.”
Justice Samuel A. Alito Jr. disagreed, saying the two cases were in important ways identical.
“They don’t have to fund private education at all,” he said of states, “but if they choose to provide scholarships that are available to students who attend private schools, they can’t discriminate against parents who want to send their children to schools that are affiliated in some way with a church.”
“That’s the simple argument,” Justice Alito said. “And it’s hard to see that that’s much different from Trinity Lutheran.”
Many state constitutions include restrictions on government aid to religious groups. The provisions, often called Blaine amendments, were initially adopted in the 19th century and often had the goal of restricting funding for Catholic schools.
Justice Brett M. Kavanaugh said the amendments were “rooted in grotesque religious bigotry against Catholics.”
Adam G. Unikowsky, a lawyer for the state, acknowledged elements of that history, calling it complicated, but said Montana’s constitutional provision was readopted in 1972. “I don’t think there’s any evidence whatsoever of any anti-religious bigotry,” he said of Montana’s current approach.
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, Chief Justice Roberts wrote in the Trinity Lutheran case. Playgrounds, he argued, were a different matter.
The current case, Espinoza v. Montana Department of Revenue, No. 18-1195, includes a curious element that several justices focused on. The Montana Supreme Court struck down the entire program, and so it was not obvious that it discriminated against religious groups.
“I am having trouble seeing where the harm in this case is at this point,” Justice Kagan said. “There is no discrimination at this point going on.”
But Mr. Wall, the lawyer for the federal government, said the Montana Supreme Court had violated the federal Constitution in striking down the program. It should not matter, he said, that the parents of students attending secular private schools had sustained “collateral damage.”
Justice Alito agreed. “It is a violation of the federal Constitution,” he said, “if a state Supreme Court bases a decision on a ground that discriminates in violation of the Constitution.
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