The U.S. Supreme Court will hear a case called Espinoza v. Montana Department of Revenue that will determine whether the United States–or any state–may still respect a separation of church and state.
In the wake of Donald Trump’s choice of two far-right Justices to the Supreme Court, this case might well be decided in a way that removes all prohibitions on the use of public funds for religious schools.
The facts of the case are these: Like many states, Montana’s state constitution forbids the funding of religious schools. The Montana legislature passed a tax credit program that funds vouchers for religious schools. The Montana Supreme Court ruled that the law violated the state constitution. Now, the case is before the U.S. Supreme Court.
Many states have such prohibitions (and in some of them, like Indiana and Florida, the state courts decided to ignore the explicit language of the state constitution and allow vouchers for religious schools on the claim that the money goes to the family not the religious school that actually gets the public money). The typical attack on state bans on funding religious schools is that such prohibitions are “Blaine amendments,” adopted in the late 19th century at the height of anti-Catholic bigotry; because they were passed in a spirit of bigotry, the argument goes, they should be struck down.
In Montana, the prohibition on funding religious schools is not a Blaine amendment. It was the product of a Montana state constitutional convention in 1972.
Advocates of vouchers will nonetheless make the same argument, ignoring the facts.
Will the Supreme Court care? Or will it placate demands for religious “freedom” by preventing states from keeping public money only in public schools?
If the Espinoza case is decided against Montana, we can anticipate public funding of evangelical Christian schools, Catholic schools, Yeshivas, and Madrassas, as well as the schools of every imaginable sect and religious group.
Somehow this does not seem to be what the Founders had in mind when they created this nation more than 200 years ago. They were not anti-religion, but they did not want religious tests for office or any religious establishment of religion with public funds.
Here is an amicus brief in the Espinoza case written by “Public Funds Public Schools,” a collaboration of legal organizations that support civil rights and civil liberties, the Education Law Center, the Southern Poverty Law Center, the SPLC Action Fund, and Munger, Tolles, and Olson LLP.

Undoubtedly one of the most important cases regarding education. As I have posted previously I do believe in public schools teaching tolerance, fighting bigotry by engaging at a minimum in the art works in other cultures.
But, for utilizing public funds to promote one specific religion is something completely different.
On the PBS Newshour last night 2 Evangelical ministers described their views. I must admit I think the Bible with which I am familiar is different than the one they interpret.
I have found great ideas and beauty in the writings, thoughts, philosophies and art in all the major religions with which I am familiar and even in Campbell’s mythology. MY VIEW.
We will have to await what happens with the Supreme Court now that the two latest judges have been included.
I wrote and said that in my view they do not represent the views of the American people in that Trump does not, as he lost the actual vote count by some 3 million votes. Be that as it may, they are on the Court for probably a long time representing a, in my view, minority opinion.
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Gorsuch and Kavanaugh were chosen by the Federalist Society specifically to tear down the separation of church and state. Both are religious zealots. In addition, Gorsuch is getting revenge for his mother, who was hounded out of her job at the Environmrnyal Protraction Agency because her views were too extremist during Reagan Administration.
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Gorsuch and Kavanaugh were chosen by the Federalist Society specifically to tear down the separation of church and state.”
Are they prepared to support all religions including Satanist? “The Satanic Temple has earned the same tax-exempt status as a church by the IRS.” When you open pandoras box all kinds of extremist and fringe suddenly appear to take advantage of the law. That’s the problem with not keeping church and state separate. You don’t get to dictate what “church” receives the money. Let’s hope they are committed to keeping church and state separate.
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That’s exactly right. I recall back in about 2012 when Louisiana started a voucher program and an unusually stupid legislator was shocked to discover that a Muslim school qualified.
The Muslim school withdrew its application, but you can be sure that once the Supreme Court removes all the boundaries, every religion will qualify and taxpayers will be supporting Satanic Temple schools, if here are any.
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“Will the Supreme Court care?”
No.
They should but won’t. The xtian fundie reactionary right has chosen the wrong test case due to the nature of the wording and when it was inserted into the state constitution. I’ve certainly been wrong many times in predicting SC outcomes, let’s hope I’m wrong again.
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K’s Views on School Prayer and Religious Freedom
When it comes to school prayer and religious freedom, K supported the issue of student led prayers at school football games and events. K wrote an amicus brief stating that the policy was in line with the constitution; the Supreme Court denied the school policy permitting public prayer as unconstitutional.
K and School Choice
When it comes to school choice, K was slightly more ambiguous. He declared serving as co-chairman of the ‘School Choice Practice Group’ and stated that he worked on school choice legislation in Florida for less pay. He didn’t, however, divulge any additional information regarding his school choice views, other than predicting that down the road, school vouchers would likely be supported by the Supreme Court.
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Amici briefs show the oligarch footprints
Cato Institute
Mackinac Center for Public Policy
Reason Foundation and Ed Choice
Alliance for Choice in Education
Honorable (or, not so) Scott Walker
Pioneer Institute
United States Conference of Catholic Bishops
Billy Graham Evangelistic Assn.
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In January 2019, the Koch’s AFP hosted a rally for school choice. The politicians in attendance were the belligerent Greg Gianforte and Steve Daines, both linked to the Koch’s. The Montana Superintendent of Public Instruction is Elsie Arntzen, formerly a state member of the Koch’s ALEC.
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Diane is correct. There are many amicus curiae briefs for this case, more on one side than the other.
Here are some briefs that I have found. I have links, but have deleted these.
Filed by EdChoice, the Reason Foundation, and the Individual Rights Foundation. This brief offers five “social science” arguments for school choice and two for a federal policy that removes confusion about “religiously Affiliated Education Services Providers.
Filed by the Koch-funded Cause of Action Institute on behalf of Americans for Prosperity and Yes. Every Kid. In addition to Americans for Prosperity and Yes. Every kid., this brief is supported by: Agudath Israel of America; Alliance for Choice in Education; American Center for Law and Justice ; Arizona Christian School Tuition Organization et al.; Billy Graham Evangelistic Association, et al. ; Center for Constitutional Jurisprudence; Center for Education Reform, et al.; Christian Legal Society, et al.; EdChoice, et al.; Forge Youth Mentoring; Foundation for Moral Law.; Georgia Goal Scholarship Program, Inc. ; Independence Institute ; Jerry and Kathy Armstrong, et al.; Jewish Coalition for Religious Liberty; Justice and Freedom Fund et al.; Liberty Justice Center and American Federation for Children, et al.; Mackinac Center for Public Policy; Montana Catholic School Parents, et al.; Montana Family Foundation; Opportunity Scholarship Fund; Pioneer Institute, Inc.; Rusty Bowers, Speaker of the Arizona House of Representatives, et al.; Senators Steve Daines, et al.; States of Oklahoma, et al.; The Becket Fund for Religious Liberty; The Cato Institute; The Honorable Scott Walker; and The Rutherford Institute.
Filed by The National Legal Foundation on behalf of 131 Current and Former State Legislators (The names of these supporters are listed on the last page of the document. They represent 28 different states. The states with the most supporters are Colorado (17), South Dakota (10), South Carolina (9), New Mexico (7), Kansas (6), followed by Arkansas, Pennsylvania, and Texas (5 each state). The mission of the National Legal Foundation is “to prayerfully create and implement innovative strategies that, through decisive action, will cause America’s public policy and legal system to support and facilitate God’s purpose for her, all while conducting ourselves at all times with the utmost integrity and in such a way as to glorify the Lord Jesus Christ.”
Filed by the Center for Law and Religious Freedom on behalf of the Christian Legal Society, United States Conference of Catholic Bishops, The Union of Orthodox Jewish Congregations Of America, American Association of Christian Schools, The Anglican Church In North America, Association of Christian Schools International, The Church of Jesus Christ of Latter-Day Saints, Council for American Private Education, Council for Christian Colleges & Universities, Ethics & Religious Liberty Commission, Evangelical Council for Financial Accountability, The General Conference of Seventh-Day Adventists, Institutional Religious Freedom Alliance, The Lutheran Church – Missouri Synod, National Association of Evangelicals, Queens Federation of Churches, and World Vision, Inc. (U.S.)
Filed by the Trump administration’s lawyers in the US Department of Justice. Attorney General William Barr and Trump’s Department of Justice clearly favor the use of public funds for religious education. Barr’s speech at Notre Dame provided a warm-up for the legal case at the Supreme Court. https://indianapublicmedia.org/news/group-files-complaint-against-u.s.-attorney-general-william-barr-following-n.d.-speech.php
There are six US Justice Department lawyers in the Trump administration’s brief. At least five are buddies, with affiliations with the Federalist Society, founded in 1982 with major funding from the Lynde and Harry Bradley Foundation. The Society is dedicated to “federalism; limited, constitutional government; separation of powers, and the rule of law in protecting individual freedom and traditional values.” Three buddies came from Jones Day, an international legal practice and the fifth largest law firm in the US. Here are a few other factoids:
–NOEL J. FRANCISCO is Solicitor General and Counsel of Record. Jones Day and Federalist Society. Worked on Zubik v. Burwell–the application of the Religious Freedom Restoration Act to regulations on insurance coverage for contraception.
–ERIC S. DREIBAND Assistant Attorney General. Jones Day and Federalist Society. Society
–JEFFREY B. WALL Deputy Solicitor General, Federalist Society.
–VIVEK SURI Assistant to the Solicitor General, Jones Day.
–ERIC W. TREENE, Special Counsel for Religious Discrimination in the Justice Department’s Civil Rights Division. Federalist Society. A conservative evangelical Christian hired by John Ashcroft in 2002, to cheers from the anti-abortion group Faith and Action who called it “a new day for Christians in Washington.”
–THOMAS E. CHANDLER, Federalist Society, but not known as a conservative. Former chief of the Disability Rights Office at the Federal Communications Commission (eight years) before Eric Holder moved him to the Civil Rights Division.
Here are the only briefs I have found on behalf of the opposition
Filed by the American Civil Liberties Union, ACLU of Montana Foundation, Inc., Americans United for Separation of Church and State, and the Anti-Defamation League, along with the Hindu American Foundation, Interfaith Alliance Foundation, Muslim Advocates, People For the American Way Foundation, and Texas Impact.
Click to access espinoza_amicus_brief.pdf
Filed by “Public Funds Public Schools,” This is the proper link to the amicus brief in the Espinoza case written by https://pfps.org/assets/uploads/PFPS_Espinoza_Amicus_Brief.pdf
The proper link to the Montana case is https://www.supremecourt.gov/DocketPDF/18/18-1195/116295/20190918175731796_18-1195tsacUnitedStates.pdf
I hope that this exercise in listing illustrates how many groups have a sake in the outcome of this case.
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Laura,
Your main point, the meager listing of opposition amici briefs, is well taken.
Relative to the total list of privatizer support, an exhaustive listing provides accuracy but, in the flood of information, significance is lost. If we pared down the list to the two most politically influential groups, would they be the Koch network and the USCCB? Consider the religions of the SCOTUS judges.
In reference to targeting opportunities for attack which is an essential feature of a winning strategy, I deduce there is an unwillingness by public school supporters to single out the Catholic church for its stand. Focusing on the Church’s congregants who ARE the church, either they agree there should be no separation of church and state or, they don’t care enough to rock the boat. Public schools are just one part of a evangelical/Catholic agenda, identified in both the Manhattan Declaration and the Weyrich training manual posted at Theocracy Watch.
An amicus brief submitted by Catholics for Separation of Church and State and for Preservation of Democracy’s Common Goods that countered the USCCB’s position would tell us that the faithful in one of the two major American religions believes in the Constitution and democracy. But then, if the faithful didn’t stand up for the children abused by priests, a situation that existed over decades because of a cover-up at the highest levels, they aren’t going to stand up for less obvious principles.
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Rusty Bowers- 7 children, attended Brigham Young University, Republican.
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“allow vouchers for religious schools on the claim that the money goes to the family not the religious school that actually gets the public money”
Come on. The parent touches the public money for 5 minutes, and then it goes to the religious school. This is direct public funding of religious schools.
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Máté Wierdl: The parent touches the public money for 5 minutes, and then it goes to the religious school. This is direct public funding of religious schools.
I totally agree but this is how rotten Supreme Courts get around the issue. Indiana has probably got more vouchers to religious schools that any other state. All of this is approved by our Supreme Court and the GOP dominated Congress and our GOP governor.
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I do not understand the logic at all. Does the Supreme Court allow tax dollars to be given back to citizens?
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Does the Supreme Court allow tax dollars to be given back to citizens?
The state awards ‘scholarships’ to students who want vouchers. That comes from taxpayer money. The parents get this voucher money and THEY decide which school their child will attend.
Therefore, even though it is against the constitutional law to give money to religious schools, this law allows giving money to parents. THEY are the recipients, not the religious schools.
Daniels signs Indiana school voucher plan into law
The Associated Press May 6, 2011
Republican Gov. Mitch Daniels on Thursday signed into law a plan giving Indiana the nation’s most sweeping private school voucher program.
Lawmakers and supporters joined Daniels at a Statehouse ceremony where he signed the voucher bill and another proposal aimed at expanding charter schools, which are public schools free of many state regulations. Daniels and other bill supporters say the proposals will give parents more choices for educating their children.
“Every child is precious,” Daniels told the crowd, including children from several private schools. “Every child deserves an equal chance to be all they can be.”
The voucher program uses taxpayer money to help parents send their children to private and religious schools. The plan is based on a sliding income scale, with families of four making more than $60,000 qualifying for some level of scholarship if they switch from public to private schools.
Legislative leaders and education advocates said the bill signing marked a historic day, and that the nation is watching Indiana as it embarks on a new level of school choice.
“Things have changed,” said Senate President Pro Tem David Long, R-Fort Wayne. “Indiana is heading in a brand new direction and we are not looking back.”
Critics say vouchers blur the line between separation of church and state and spread scarce education money too thin. The proposal was a key reason behind a five-week boycott of the Legislature by House Democrats, who returned to the Statehouse from Illinois only after winning concessions on the voucher bill and other proposals.
Republicans around the country are pushing to expand voucher programs after the GOP made big gains in the 2010 elections. But Indiana’s proposal differs from existing programs.
Other systems across the country are limited to lower-income households, children with special needs or those in failing schools.
Indiana’s program would be open to a much larger pool of students, including those already in excellent schools. Indiana’s program will be limited to just 7,500 students for the first year and 15,000 in the second, a fraction of the state’s about 1 million students. But within three years, there will be no limit on the number of children who could enroll.
Superintendent of Public Instruction Tony Bennett said the state Department of Education is working on the logistics of the program now. He hopes to have an online application process running in plenty of time for parents to make decisions about their children’s schooling during the next academic year.
The education proposals enacted into law Thursday are a major part of Daniels’ aggressive education agenda. The GOP-ruled General Assembly approved all of the governor’s proposals, handing him big legislative victories as he considers whether to run for president.
The vouchers themselves do not carry any additional expense for the state because they mainly transfer money between schools. The actual value of the vouchers is based on a sliding scale and is less than the amount of tax money a public school would have received for that student. In the case of students in grades 1 through 8, the maximum value would be $4,500.
But the bill includes a tax deduction of $1,000 for each child in a private school or home school. That will translate into a revenue loss of more than $3 million, according to the nonpartisan Legislative Services Agency.
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The last paragraph is just mind boggling.
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Indiana’s revenue loss will become much more than $3 mil. Men and women who have kids will choose “homeschooling” to get the $1,000.
The religious have a long history of treating children as chattel to be exploited (and, abused). Add in selfish, neglectful and cruel parents (some tout religion) who view government handouts as opportunity for a quick buck and Indiana’s purported education system returns to the period before orphan trains.
The USCCB’s $2.5 mil. for an organization that exclusively promotes rhythm birth control (failure rate – 25%) rounds out the theocracy’s plans. Added note- the bishops are aligned with Robert P. George who makes a connection between promiscuity and pharmaceutical birth control.
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The Center for American Progress claims it opposes vouchers. Where’s CAP’s amicus brief in the Espinosa case? Answer, CAP’s education agenda is aligned with AEI and the Koch network, Pete Buttigieg’s talking points, also aligned.
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Obviously, state university faculty and administrators don’t care that they are next to see their tax funding go to Catholic and evangelical universities.
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Public funding already goes to religious institutions of higher education
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New America (the spin tank of Google’s Eric Schmidt) proposes state funding for public universities be shared with private colleges).
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