Amicus Curiae Brief — Kendra Espinoza, et al., Petitioners v. Montana Department of Revenue, et al.

Supreme Court briefSep 17, 2019

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No. 18-1195

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In The

Supreme Court of the United States

-----------------------------------------------------------------KENDRA ESPINOZA, JERI ELLEN ANDERSON,

and JAIME SCHAEFER,

Petitioners,

MONTANA DEPARTMENT OF REVENUE, and

GENE WALBORN, in his official capacity as Director

of the Montana Department of Revenue,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

Supreme Court Of Montana

-----------------------------------------------------------------BRIEF OF OKLAHOMA, GEORGIA, ARIZONA,

ALABAMA, ALASKA, ARKANSAS, KANSAS,

THE COMMONWEALTH OF KENTUCKY BY AND

THROUGH GOVERNOR MATT BEVIN, LOUISIANA,

GOVERNOR PHIL BRYANT OF THE STATE OF

MISSISSIPPI, MISSOURI, NEBRASKA, OHIO,

SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH,

AND WEST VIRGINIA AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------CHRISTOPHER M. CARR

Georgia Attorney General

ANDREW A. PINSON

Solicitor General

KURTIS G. ANDERSON

Asst. Attorney General

MARK BRNOVICH

Arizona Attorney General

O.H. SKINNER

Solicitor General

ANDREW G. PAPPAS

Deputy Solicitor General

MIKE HUNTER

Oklahoma Attorney General

MITHUN MANSINGHANI

Solicitor General

Counsel of Record

ZACH WEST

BRYAN CLEVELAND

Asst. Solicitors General

OKLAHOMA OFFICE OF

THE ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

(405) 522-4392

mithun.mansinghani@

oag.ok.gov

[Additional Counsel Listed On Inside Cover]

================================================================================================================

Counsel for Amici

STEVE MARSHALL

Alabama Attorney General

DOUG PETERSON

Nebraska Attorney General

KEVIN G. CLARKSON

Alaska Attorney General

DAVE YOST

Ohio Attorney General

LESLIE RUTLEDGE

Arkansas Attorney General

JASON R. RAVNSBORG

South Dakota

Attorney General

DEREK SCHMIDT

Kansas Attorney General

MATT BEVIN

Governor of Kentucky

JEFF LANDRY

Louisiana Attorney General

PHIL BRYANT

Governor of Mississippi

ERIC SCHMITT

Missouri Attorney General

HERBERT H. SLATERY III

Tennessee Attorney General

KEN PAXTON

Texas Attorney General

SEAN D. REYES

Utah Attorney General

PATRICK MORRISEY

West Virginia

Attorney General

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................

iii

INTERESTS OF AMICI CURIAE .........................

SUMMARY OF THE ARGUMENT .......................

ARGUMENT ...........................................................

I. Montana’s Blaine Amendment, as applied

by the decision below, violates the First and

Fourteenth Amendments to the U.S. Constitution ............................................................

A. This Court’s precedent requires reversal ...........................................................

B. The Montana Supreme Court’s decision

to invalidate the entire tax-credit program does not cure the constitutional

violations................................................

II.

Reversal would encourage other state courts

to interpret their states’ Blaine Amendments in a way that does not pose the same

First Amendment problems as Montana’s

provision ....................................................... 15

A. The text of the vast majority of state

Blaine Amendments permits states to

include religious organizations in generally applicable tax-credit scholarship

programs ................................................ 16

B. Judicial constructions of the Blaine

Amendments of at least nine states

already permit including religious organizations in a generally applicable

tax-credit scholarship program ............. 26

TABLE OF CONTENTS – Continued

Page

III.

The decision below, if affirmed, will jeopardize numerous school choice programs across

the country, harming children who are religious, impoverished, and disabled............... 28

A. Affirmance would jeopardize scholarship programs that help more than a

quarter million students, especially lowincome and disabled children ............... 29

B. Affirmance will sanction state disapproval of religious choices ..................... 32

CONCLUSION .......................................................

iii

TABLE OF AUTHORITIES

Page

CASES

Ams. United for Separation of Church & State

Fund, Inc. v. State, 648 P.2d 1072 (Colo. 1982) ......27

Ams. United v. Rogers, 538 S.W.2d 711 (Mo.

1976) ........................................................................25

Ariz. Christian Sch. Tuition Org. v. Winn, 563

U.S. 125 (2011) ........................................................19

Armstrong v. Exceptional Child Ctr., Inc., 135

S. Ct. 1378 (2015) ....................................................10

Bd. of Educ. of Westside Cmty. Schs. v. Mergens,

496 U.S. 226 (1990) .................................................12

Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 228

N.E.2d 791 (N.Y. 1967), aff’d 392 U.S. 236

(1968) .......................................................................26

Bd. of Educ. v. Allen, 392 U.S. 236 (1968) ...................... 24

Cantwell v. Connecticut, 310 U.S. 296 (1940)...............5

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993) ........................ 5, 12, 37

Emp’t Div., Dep’t of Human Res. of Or. v. Smith,

494 U.S. 872 (1990) .................................................14

Eugene Sand & Gravel, Inc. v. City of Eugene,

558 P.2d 338 (Or. 1976) ...........................................27

Everson v. Bd. of Educ. of Ewing Twp., 330 U.S.

1 (1947) ................................................................ 6, 11

Gaddy v. Ga. Dep’t of Revenue, 802 S.E.2d 225

(Ga. 2017) .................................................... 20, 21, 27

TABLE OF AUTHORITIES – Continued

Page

Gilligan v. Attorney General, 595 N.E.2d 288

(Mass. 1992) ............................................................21

Griffith v. Bower, 747 N.E.2d 423 (Ill. App. 5th

Dist. 2001) ...............................................................27

Heckler v. Mathews, 465 U.S. 728 (1984)....................13

In re N.C.B. Careers, 298 N.W.2d 526 (S.D. 1980)......... 21

Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998) .... 25, 27

Kotterman v. Killian, 972 P.2d 606 (Ariz.

1999) ...................................................... 19, 20, 25, 27

Levin v. Commerce Energy, Inc., 560 U.S. 413

(2010) ................................................................. 13, 14

Locke v. Davey, 540 U.S. 712 (2004) ......................... 7, 8

Lynch v. Donnelly, 465 U.S. 668 (1984) ......................11

Madden v. Kentucky, 309 U.S. 83 (1940) ....................14

Magee v. Boyd, 175 So. 3d 79 (Ala. 2015) ............. 21, 27

Marbury v. Madison, 5 U.S. 137 (1803) ........................9

Maryland v. Louisiana, 451 U.S. 725 (1981) ..............10

McCall v. Scott, 199 So. 3d 359 (Fla. 1st Dist.

App. 2016) .......................................................... 21, 27

McDaniel v. Paty, 435 U.S. 618 (1978).................... 5, 12

Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013) ........25

Mitchell v. Helms, 530 U.S. 793 (2000) ................... 7, 38

Mueller v. Allen, 463 U.S. 388 (1983).......... 6, 24, 36, 37

Norton v. Shelby County, 118 U.S. 425 (1886) .............9

TABLE OF AUTHORITIES – Continued

Page

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199

(2015) .......................................................................10

Rosenberger v. Rector and Visitors of UVA, 515

U.S. 819 (1995) ........................................................11

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.

203 (1963) ................................................................11

Springfield Sch. Dist., Del. Cnty. v. Dep’t of

Educ., 397 A.2d 1154 (Pa. 1979) .............................27

State ex rel. Gallwey v. Grimm, 48 P.3d 274

(Wash. 2002) ............................................................25

Toney v. Bower, 744 N.E.2d 351 (Ill. App. 4th

Dist. 2001) ...............................................................27

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017)......................... passim

Van Orden v. Perry, 545 U.S. 677 (2005) .... 3, 11, 12, 13

Widmar v. Vincent, 454 U.S. 263 (1981) .....................11

Witters v. Wash. Dep’t of Servs. for Blind, 474

U.S. 481 (1986) ..........................................................6

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)... passim

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S.

1 (1993) ................................................................ 7, 11

Zorach v. Clauson, 343 U.S. 306 (1952) ......................11

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

ALA. CONST. art. IV, § 73 .............................................19

ALA. CONST. art. XIV, § 263 ................................... 19, 23

ALASKA CONST. art. VII, § 1 .........................................18

ARIZ. CONST. art. II, § 12 .............................................18

ARIZ. CONST. art. IX, § 10 ............................................23

CAL. CONST. art. IX, § 8 ...............................................19

CAL. CONST. art. XVI, § 5 ............................................19

COLO. CONST. art. IX, § 7.............................................22

DEL. CONST. art. X, § 3 ................................................22

FLA. CONST. art. I, § 3............................................ 18, 25

GA. CONST. art. I, § II ...................................... 17, 18, 25

HAW. CONST. art. X, § 1 ...............................................23

IDAHO CONST. art. IX, § 5 ............................................23

ILL. CONST. art. X, § 3..................................................23

IND. CONST. art. 1, § 6............................................ 17, 18

IOWA CONSt. art. I, § 3 .................................................29

KY. CONST. § 189 .........................................................22

LA. CONST. art. I, § 8 ...................................................29

MASS. CONST. art. XVIII, § 2 .......................................18

MICH. CONST. art. VIII, § 2 .................................... 19, 25

MICH. CONST. VIII, § 12 ..............................................23

MINN. CONST. art. XIII, § 2 .........................................18

vii

TABLE OF AUTHORITIES – Continued

Page

MINN. CONST. art. I, § 16 .............................................23

MO. CONST. art. I, § 7 ..................................................25

MO. CONST. art. IX, § 8 ................................................23

MONT. CONST. art. V, § 11(5) ............................... passim

MONT. CONST. art. X, § 6 .............................................25

N.H. CONST. pt. 2, art. 83 ...................................... 18, 23

N.M. CONST. art. XII, § 3 .............................................19

N.Y. CONST. art. XI, § 3 ................................... 22, 23, 25

NEB. CONST. art. VII, § 11 ...........................................18

NEV. CONST. art. 11, § 10 ............................................23

OKLA. CONST. art. II, § 5........................................ 18, 25

OR. CONST. art. I, § 5 ...................................................23

PA. CONST. art. III, § 15 ..............................................19

R.I. CONST. art. I, § 3...................................................29

S.C. CONST. art. XI, § 4 ................................................18

S.D. CONST. art. VI, § 3 ...............................................23

U.S. CONST. art. VI, cl. 2 ..............................................10

U.S. CONST. amend. I ........................................... passim

U.S. CONST. amend. XIV................................................4

UTAH CONST. art. I, § 4 .......................................... 19, 23

UTAH CONST. art. X, § 9 ...............................................19

VA. CONST. art. IV, § 16 ......................................... 19, 25

WASH. CONST. art. I, § 11 ............................................23

viii

TABLE OF AUTHORITIES – Continued

Page

WIS. CONST. art. I, § 18 ...............................................18

WYO. CONST. art. I, § 19 ..............................................19

WYO. CONST. art. 3, § 36 ..............................................19

STATUTES

ARIZ. REV. STAT. § 43-1505(E) .....................................31

KAN. STAT. ANN. § 72-4352(d)(1)(A) ............................30

KAN. STAT. ANN. § 72-5132(c)(1) .................................30

MINN. STAT. ANN. § 290.0674 ......................................29

OHIO REV. CODE § 3310.01, et seq. ..............................35

OKLA. STAT. tit. 68, § 2357.206(G)(2)-(3) ....................31

OKLA. STAT. tit. 68, § 2357.206(G)(7)(d) .....................30

S.C. CODE ANN. § 12-6-3790 ........................................30

VA. CODE ANN. § 58.1-439.28(C) .................................31

RULE

Sup. Ct. Rule 37.4 .........................................................1

OTHER AUTHORITIES

AAA SCHOLARSHIP FOUND., INC., 2018-2019 Midyear Scholarship Organization Information ..........35

ALA. DEP’T OF REVENUE, 2017 Scholarship Granting Organization Public Report Information .........30

TABLE OF AUTHORITIES – Continued

Page

Anna J. Egalite & Patrick J. Wolf, A Review of the

Empirical Research on Private School Choice,

91 PEABODY J. EDUC. 441 (2016) .............................31

ARIZ. DEP’T OF REVENUE, School Tuition Organization Income Tax Credits in Arizona, Summary of Activity: FY 2016/2017 ..............................30

CHILDREN’S SCHOLARSHIP FUND, Scholarship Organization Report (July 16, 2019)..................... 30, 34

CHILDREN’S TUITION FUND, 2018-2019 Mid-year

Scholarship Organization Information ..................35

David Figlio and Cassandra M. D. Hart, Competitive Effects of Means-Tested School Vouchers, 6 AM. ECON. J.: APPLIED ECON. 133 (2014) .......32

David Figlio et al., Who Uses a Means-Tested

Scholarship, and What Do They Choose?, 29

ECON. EDUC. REV. 301 (2010) ..................................31

DINOSAURS & ROSES, 2018-2019 Mid-year Scholarship Organization Information ...........................35

EDUC. FUND OF N. NEV., 2018-2019 Mid-year

Scholarship Organization Information ..................35

FLA. DEP’T OF EDUC., Florida Tax Credit Scholarship Program, June 2019 Quarterly Report ..... 33, 34

FLA. DEP’T OF EDUC., OFFICE OF INDEP. EDUC. &

PARENTAL CHOICE, Florida Private School Directory ......................................................................33

GA. CENTER FOR OPPORTUNITY, Georgia School

Choice Handbook, 2019 Parents Guide ....................... 29

TABLE OF AUTHORITIES – Continued

Page

GA. DIV. OF FAMILY & CHILDREN SVCS.,

AdoptUSKids (April 2019) ......................................36

GIVING AND GOING ALLIANCE, Scholarship Organization Report (July 26, 2019)..................... 30, 34

Greg Forster, A Win-Win Solution: The Empirical

Evidence for School Choice, FRIEDMAN FOUND.

FOR EDUC. CHOICE (May 2016) ................................31

Henry Campbell Black, Dictionary of Law (1st

ed. 1891) .......................................................... passim

KAN. DEP’T OF EDUC., Tax Credit for Low Income

Students Scholarship Program, Legislative Report for 2019 ............................................................30

LA. DEP’T OF EDUC., 2017-2018 Annual Report on

the Tuition Donation Credit Program ....................29

Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins,

Scope, and First Amendment Concerns, 26

Harv. J.L. & Pub. Pol’y 551 (Spring 2003) ..............16

N.H. DEP’T OF EDUC., School Information ..................34

NEV. DEP’T OF EDUC., Nevada Opportunity Tax

Credit Scholarship Program, Fact Sheet (Nov.

2018) ........................................................................31

Noah Webster, An American Dictionary of the

English Language (1st ed. 1828) ............................22

OKLA. DEP’T OF HUMAN SERVS., Office of Community and Faith Engagement Office Information

(Feb. 26, 2018) .........................................................35

OKLA. ISLAMIC SCH. FOUND., FAQs..............................34

TABLE OF AUTHORITIES – Continued

Page

OKLA. STATE DEP’T OF EDUC., Lindsey Nicole Henry

Approved Private Schools (July 3, 2019) ................35

OPPORTUNITY SCHOLARSHIP FUND, Our Member

Schools .....................................................................34

Patrick O’Donnell, Almost all of Ohio’s voucher

cash goes to religious schools, THE PLAIN DEALER

(Mar. 12, 2017) .........................................................35

Richard D. Komer & Olivia Grady, School Choices

and State Constitutions: A Guide to Designing

School Choice Programs, Institute for Justice

and American Legislative Exchange Council

(2nd ed. 2016) ..........................................................15

S.D. PARTNERS IN EDUC., Program Summary ...............30

SSM HEALTH, About SSM Health, Our Mission

& Values, 2019 .........................................................36

THE FEDERALIST No. 78 (A. Hamilton) ........................10

U.S. DEP’T OF EDUC., NAT’L CENTER FOR EDUC.

STATISTICS, Private School Universe Survey,

2017-2018 Data Files ..............................................33

U.S. DEP’T OF EDUC., NAT’L CENTER FOR EDUC.

STATISTICS, Private School Universe Survey,

2016-17 Data Files and 2017-2018 Data Files .......34

U.S. GOV’T ACCOUNTABILITY OFFICE, Private School

Choice: Requirements for Students and Donors Participating in State Tax Credit Scholarship Programs (Sept. 2018) .................................29

xii

TABLE OF AUTHORITIES – Continued

Page

Webster’s New Collegiate Dictionary (1979)...............23

William C. Cochran, Students’ Law Lexicon –

A Dictionary of Legal Words and Phrases 222

(1888) ........................................................... 17, 18, 19

INTERESTS OF AMICI CURIAE

This case implicates the vital interests of Oklahoma, Georgia, Arizona, Alabama, Alaska, Arkansas,

Kansas, Kentucky, Louisiana, Mississippi, Missouri,

Nebraska, Ohio, South Dakota, Tennessee, Texas,

Utah, and West Virginia1 in promoting the general

welfare of our residents and protecting their constitutional rights.

Many of the Amici States have enacted scholarship

programs similar to the one the Montana Supreme

Court struck down in this case. These programs provide financial assistance that empowers parents to

choose better educational opportunities for their children. The Amici States permit students in these programs to attend private schools of sufficient caliber,

religious or not, as a matter of good policy. But opening

these programs to religious and secular schools alike

is also required by the First Amendment.

Many of the Amici States also have a constitution

that includes a “Blaine Amendment” or “no-aid provision” similar to Article V, Section 11(5), and Article X,

Section 6, of the Montana Constitution. The court below relied on Montana’s Blaine Amendment in striking

down the scholarship program, causing the constitutional violations at issue in this case. Although each

Blaine Amendment is slightly different, these provisions must be read, if at all possible, to permit states

to include religious schools in generally applicable

tax-credit scholarship programs. By doing so, states

Amici submit this brief pursuant to Sup. Ct. Rule 37.4.

can both protect all residents’ First Amendment rights

and maximize every child’s opportunity to secure an

excellent education.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

I. State law that mandates discrimination against

religion violates the First Amendment unless “a state

interest of the highest order” justifies it. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct.

2012, 2019 (2017) (cleaned up). A long line of precedent

from this Court makes it abundantly clear that barring

all religious participants in a facially neutral program

on anti-establishment grounds is not a compelling

interest. Yet that is precisely what the Montana

Supreme Court did in the case below.

The Montana Supreme Court did not avoid this

First Amendment violation by dismantling the state’s

school choice scholarship program in toto. State law,

including in a state constitution, is void and unenforceable if it violates the U.S. Constitution. The Supremacy

Clause requires courts to disregard an unconstitutional state law; a court cannot apply the discriminatory law first and then decide whether the results

provide equal treatment. But the decision below held

the opposite when it interpreted and applied the state

constitution’s Blaine Amendment as requiring every

public benefit be withdrawn as soon as a disfavored

religious group even incidentally benefits. This “evince[s]

a hostility to religion” and creates a First Amendment

problem independent of any equal protection issues.

Van Orden v. Perry, 545 U.S. 677, 684 (2005) (plurality

opinion).

II. Reversal of the decision below would encourage other state courts to avoid similar First Amendment violations and give proper respect to neutral

state laws that help the religious and nonreligious

alike. The text of most state constitutions that contain

Blaine Amendments or “no-aid” provisions does not require the broad interpretation Montana chose here.

Prohibitions on uses of state funds do not prohibit individuals’ use of tax credits, nor do prohibitions on aiding religious schools prohibit aid to religious students.

Nine states have found no conflict between their

state Blaine Amendments and tax-credit scholarships.

Other state courts are more likely to follow that precedent and avoid First Amendment violations if the Montana Supreme Court is reversed here.

III. On the other hand, affirming the Montana

Supreme Court’s decision could have a sizeable negative effect nationwide. That judgment would encourage

other state courts to curtail or entirely eliminate neutral state education programs designed to help the underprivileged just because religious adherents want to

participate with everyone else. Religious schools disproportionately volunteer for these programs and parents disproportionately choose religious schools across

the states. Over a quarter million students in schoolchoice programs like Montana’s could be deprived of

a better education if religious schools and parents

cannot actively seek educational improvement. This

Court should not countenance the “odious” position

that religious participants are unwelcome in neutral

programs. Trinity Lutheran, 137 S. Ct. at 2025.

------------------------------------------------------------------

ARGUMENT

Montana’s Blaine Amendment, as applied by

the decision below, violates the First and

Fourteenth Amendments to the U.S. Constitution.

At its core, this case is rather simple. The Montana

Legislature created a neutral and generally applicable

public benefit program. The Montana Supreme Court

invalidated this program because some benefits would

incidentally accrue to religious institutions. The court

did so based on a Montana constitutional provision,

checkered with a history of religious animus, that imposes special disabilities based on religious status. The

First and Fourteenth Amendments forbid such treatment of religious persons and organizations.

A. This Court’s precedent requires reversal.

1. The tax-credit program invalidated by the

Montana Supreme Court is neutral toward religion

and generally available to all Montana taxpayers. It

provides a tax-credit to any person, regardless of religion, who donates to a qualified scholarship organization. The organization may then use those donations to

provide tuition scholarships to any child to attend any

qualified private school, regardless of religious affiliation.

The Montana Supreme Court invalidated this program because it would incidentally benefit religious

schools if scholarship recipients chose to attend those

schools. In its own words, the Montana Supreme Court

held that Montana’s Blaine Amendment required the

state to discriminate “between an indirect payment to

fund a secular education and an indirect payment to

fund a sectarian education.” Pet. App. 29.

This Court’s precedent makes clear that state law

cannot mandate such discrimination. The court below

used Montana’s Blaine Amendment to target “conduct

motivated by religious beliefs.” Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 524

(1993). But “a law targeting religious beliefs as such is

never permissible.” Id. at 533 (citing McDaniel v. Paty,

435 U.S. 618, 626 (1978); Cantwell v. Connecticut, 310

U.S. 296, 303-04 (1940)). This Court’s “Establishment

Clause cases . . . forbid[ ] an official purpose to disapprove . . . of religion in general.” Lukumi, 508 U.S. at

532. And “the protections of the Free Exercise Clause

pertain if the law at issue,” like Montana’s Blaine

Amendment, “discriminates against some or all religious beliefs. . . .” Id.

A law violates the First Amendment not only when

it directly restricts a religious practice, but also when

it denies a public benefit because of religious affiliation. Over 70 years ago, this Court stated that a state

“cannot hamper its citizens in the free exercise of their

own religion” by excluding “members of any [ ] faith,

because of their faith, or lack of it, from receiving the

benefits of public welfare legislation.” Everson v. Bd. of

Educ. of Ewing Twp., 330 U.S. 1, 16 (1947). And just

two years ago this Court reaffirmed that the First

Amendment “subjects to the strictest scrutiny laws

that target the religious for special disabilities based

on their religious status,” and “denying a generally

available benefit solely on account of religious identity

imposes a penalty on the free exercise of religion that

can be justified only by a state interest of the highest

order.” Trinity Lutheran, 137 S. Ct. at 2019 (citations

and internal marks omitted); see also id. at 2022. The

court below held that Montana law forbids any state

program that indirectly benefits religious organizations, thereby imposing special disabilities based on

religious status in contravention of the First Amendment.

2. The Montana Supreme Court offered little justification for imposing this discriminatory burden,

much less a “state interest of the highest order” to survive “the strictest scrutiny.” Id. At most, the justices in

the majority intimated that this discriminatory treatment is required by the Establishment Clause. See Pet.

App. 30-31, 35, 43-49, 57. A long line of this Court’s

cases, however, have recognized that the Establishment Clause imposes no barriers to state programs “in

which government aid reaches religious schools only as

a result of the genuine and independent choices of private individuals.” Zelman v. Simmons-Harris, 536 U.S.

639, 649 (2002) (citing Mueller v. Allen, 463 U.S. 388

(1983); Witters v. Wash. Dep’t of Servs. for Blind, 474

U.S. 481 (1986); Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1 (1993)); see also Mitchell v. Helms, 530 U.S.

793 (2000).

And Montana’s program layers even more private

choice between the government benefit and religious

institutions than the program in Zelman. The government benefit (the tax credit) is given to an individual

who chooses to donate to a scholarship organization,

although they may also receive a similar tax credit by

donating to public schools. See Pet. App. 37-38 n.2.

A family must then choose to send their child to a

religious school (or not) and apply for a scholarship

from the scholarship organization. Finally, the scholarship organization must choose to support that family

by providing a tuition scholarship to a school operated

by a religious entity. Only then would a religious institution see any benefit from Montana’s tax statute.

If Zelman’s single layer of private choice sufficiently mediates any concerns about benefitting religious organizations, surely Montana’s three degrees of

separation can pose no Establishment Clause concerns. Cf. Mitchell, 530 U.S. at 816 (plurality op.) (“We

viewed this arrangement, however, as no different

from a government issuing a paycheck to one of its employees knowing that the employee would direct the

funds to a religious institution.”); Locke, 540 U.S. at

727-28, 734 (Scalia, J., dissenting) (“No one would seriously contend, for example, that the Framers would

have barred ministers from using public roads on their

way to church. . . . What next? Will we deny priests and

nuns their prescription-drug benefits on the ground

that taxpayers’ freedom of conscience forbids medicating the clergy at public expense?”). As in Trinity Lutheran, Montana’s “policy preference for skating as far

as possible from religious establishment concerns . . .

cannot qualify as compelling” enough to justify “the

clear infringement on free exercise” that the court below imposed. 137 S. Ct. at 2024.

3. Not even Respondents assert that the Establishment Clause requires the result below. Instead,

they argue that Montana’s Blaine Amendment is

“within the ‘play in the joints’ of the Religion Clauses.”

Opp. 30 (quoting Locke v. Davey, 540 U.S. 712, 718-19

(2004)). This is incorrect. See Pet. Br. 23-28. Whereas

Locke involved a concern “at the historic core of the Religion Clauses,” Trinity Lutheran, 137 S. Ct. at 2023, at

the historic core of Montana’s Blaine Amendment lies

religious hostility, see Pet. Br. 28-45. And while the

state in Locke “went ‘a long way toward including religion in its benefits,’ ” Trinity Lutheran, 137 S. Ct. at

2023 (quoting Locke, 540 U.S. at 724), Montana goes a

long way toward excluding religion by prohibiting public programs that have three degrees of separation

from religion. Even the dissent in Trinity Lutheran

was primarily concerned with direct funding of houses

of worship from the public treasury, see id. at 2027-30

(Sotomayor, J., dissenting)—a concern not presented

by the tax-credit program in this case.

B. The Montana Supreme Court’s decision

to invalidate the entire tax-credit program does not cure the constitutional violations.

Respondents contend that the Montana Supreme

Court fixed any constitutional defect by eliminating

Montana’s scholarship program altogether. See Opp.

12, 22-24, 32-34, 36. In effect, the Court below held that

under the state’s Blaine Amendment, if religious institutions must be included in Montana’s program, then

no one can be allowed to benefit. See Pet. App. 28-29.

Better to raze a program, Montana law now commands, than to allow any religious entity to obtain

even the most incidental benefits. But enforcing a state

law that requires hostility to religion does not cure constitutional problems; it perpetuates them.

1. Because the Montana Supreme Court interpreted Montana’s Blaine Amendment to require unconstitutional discrimination, the Blaine Amendment

should never have been applied in the first place. “An

unconstitutional act is not a law; it confers no rights; it

imposes no duties; it affords no protection; it creates no

office; it is, in legal contemplation, as inoperative as

though it had never been passed.” Norton v. Shelby

County, 118 U.S. 425, 442 (1886). Since Montana’s

Blaine Amendment violates the First Amendment, it is

“void” and to be given no effect. Marbury v. Madison, 5

U.S. 137, 177 (1803). The only permissible course is to

recognize that Montana’s Blaine Amendment is unconstitutional, and then not enforce it.

The Montana Supreme Court’s opposite approach

raises Supremacy Clause concerns. See U.S. CONST.

art. VI, cl. 2. Because Montana’s Blaine Amendment

and the First Amendment “clash,” the Supremacy Clause

“creates a rule of decision”: courts “must not give effect

to state laws.” Armstrong v. Exceptional Child Ctr., Inc.,

135 S. Ct. 1378, 1383 (2015); see also Maryland v. Louisiana, 451 U.S. 725, 746 (1981) (“It is basic to this

constitutional command that all conflicting state provisions be without effect.”). That is, where there exists

“a conflict between a law and the Constitution, judges

. . . have a duty ‘to adhere to the latter and disregard

the former.’ ” Perez v. Mortg. Bankers Ass’n, 135 S. Ct.

1199, 1220 (2015) (quoting THE FEDERALIST No. 78, at

468 (A. Hamilton)). The Supremacy Clause does not

countenance Respondents’ approach, which is to apply

a discriminatory state law first, and then later analyze

whether the aftermath contains any federal constitutional problems.

2. Sidestepping the Supremacy Clause also creates a legal rule in Montana that raises a new constitutional violation. The current rule in Montana is: any

public benefit is available to all, but as soon as the

disfavored religious class may benefit, directly or indirectly, the benefit shall be available to no one. This

rule has no logical stopping point. The State may

support soup kitchens—unless the Catholic Church

opens a soup kitchen. The State may assist businesses

in maintaining their storefront sidewalks—unless any

business regularly allows the Salvation Army to seek

charity there. The State may provide police, fire, and

antiterrorism protection—unless that allows the Synagogue to spend less funds on security and safety

measures. No member of this Court has ever countenanced that this is consistent with our federal Constitution.2

When state law so forbids even the most incidental

benefit to religion, it violates the Establishment

Clause by “affirmatively opposing or showing hostility

to religion, thus ‘preferring those who believe in no religion over those who do believe.’ ” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963) (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952)). The

Constitution “affirmatively mandates accommodation,

not merely tolerance, of all religions, and forbids hostility toward any.” Lynch v. Donnelly, 465 U.S. 668, 673

(1984); see also Rosenberger v. Rector and Visitors of

UVA, 515 U.S. 819, 845-46 (1995). The Montana Supreme Court interpreted its constitution to “evince a

hostility to religion by disabling the government” from

enacting social welfare programs that even in the most

incidental ways benefit religion. Van Orden, 545 U.S.

at 684. Because it is “based primarily on the religious

nature” of participating schools, the decision below

See Trinity Lutheran, 137 S. Ct. at 2027 (Breyer, J., concurring) (“ ‘[C]utting off church schools from’ such ‘general government services as ordinary police and fire protection . . . is

obviously not the purpose of the First Amendment.’ ” (quoting

Everson, 330 U.S. at 17-18)); id. at 2040 (Sotomayor, J., dissenting) (agreeing that “[t]o fence out religious persons or entities

from a truly generally available public benefit—one provided to

all, no questions asked, such as police or fire protections—would

violate the Free Exercise Clause”); Zobrest, 509 U.S. at 8 (citing

Widmar v. Vincent, 454 U.S. 263, 274-75 (1981)).

“lead[s] the law to exhibit a hostility toward religion.”

Id. at 704 (Breyer, J., concurring). It is hard to imagine

a more hostile legal regime than one wherein everything religion touches is tainted as anathema to the

state.

“The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as

subversive of American ideals and therefore subject to

unique disabilities.” Bd. of Educ. of Westside Cmty.

Schs. v. Mergens, 496 U.S. 226, 248 (1990) (quoting

McDaniel, 435 U.S. at 641 (Brennan, J., concurring in

the judgment)). Abolishing every program that includes as incidental beneficiaries religious entities—a

rule applied only to religious entities and only because

they are religious—imposes such a unique disability.

See also Trinity Lutheran, 137 S. Ct. at 2019 (First

Amendment prohibits laws “target[ing] the religious

for ‘special disabilities’ based on their ‘religious status’ ” and “singl[ing] out the religious for disfavored

treatment”) (quoting Lukumi, 508 U.S. at 533, 542)); id.

at 2027 (Breyer, J., concurring in the judgment) (“The

sole reason advanced that explains the difference is

faith. And it is that last-mentioned fact that calls the

Free Exercise Clause into play. We need not go further.”).

And the Montana rule will surely engender public

hostility toward religious adherents, whose presence

and request for equal treatment would be the but-for

cause of the denial to all others the opportunity to receive public benefits. This “purg[ing] from the public

sphere all that in any way partakes of the religious”

will therefore “tend to promote the kind of social conflict the Establishment Clause seeks to avoid.” Van

Orden, 545 U.S. at 699 (Breyer, J., concurring in the

judgment).

3. The equal protection cases Respondents cite

cannot justify the decision below. Opp. 32, 36. To start,

those cases did not involve a decision to eliminate a

disparity via application of a state constitutional provision that itself is unconstitutional, raising the concerns discussed above.

Respondents rely on Levin v. Commerce Energy,

Inc., 560 U.S. 413 (2010), which emphasized that “[o]n

finding unlawful discrimination . . . courts may attempt, within the bounds of their institutional competence, to implement what the legislature would have

willed had it been apprised of the constitutional infirmity.” Id. at 427; see also Heckler v. Mathews, 465 U.S.

728, 739 n.5 (1984). But here, legislative intent is quite

clear: the Montana Legislature enacted a tax-credit

program that would provide the credits irrespective of

whether donations are used for scholarships at religious or nonreligious schools. The Montana Supreme

Court held as much. See Pet. App. 33. This Court’s decision in Levin cannot be used to justify striking down

that program in its entirety.

The cases Respondents cite also involve equal

treatment concerns distinct from the powerful First

Amendment values at stake here. Levin presented a

case of discriminatory taxation, where equal treatment

“even more than in other fields” is subject to wide legislative prerogative. 560 U.S. at 426 (quoting Madden

v. Kentucky, 309 U.S. 83, 88 (1940)). Here, the First

Amendment concerns subject the state law “to the

strictest scrutiny.” Trinity Lutheran, 137 S. Ct. at 2019.

Unlike in Levin, the equal protection concerns in this

case combine with First Amendment protections to forbid solving discriminatory treatment by categorically

eliminating every benefit in which a disfavored religious group chooses to participate. Cf. Emp’t Div., Dep’t

of Human Res. of Or. v. Smith, 494 U.S. 872, 881-82

(1990) (noting the presence of “hybrid” rights where

the “Free Exercise Clause [works] in conjunction with

other constitutional protections” to provide greater

protection). Exclusion of people of faith from public

benefits by systematic de jure elimination of all programs in which they participate still evinces hostility

to and imposes special disabilities on religion. See

Trinity Lutheran, 137 S. Ct. at 2022 (religious freedom

cannot “come[ ] at the cost of automatic and absolute

exclusion from the benefits of a public program for

which the [religious person] is otherwise fully qualified”).

II.

Reversal would encourage other state courts

to interpret their states’ Blaine Amendments

in a way that does not pose the same First

Amendment problems as Montana’s provision.

The anti-religion legal framework that reigns in

Montana today is not one of necessity. Thirty-six other

states, including many of the Amici States, have Blaine

Amendments—sometimes called or grouped with similar “no-aid” provisions—that limit the extent to which

the State may provide aid to religious organizations.

See Richard D. Komer & Olivia Grady, School Choices

and State Constitutions: A Guide to Designing School

Choice Programs, Institute for Justice and American

Legislative Exchange Council (2nd ed. 2016). While

some of those no-aid provisions could be read the way

Montana has construed its own provision—to require

the State to discriminate against religious organizations by excluding them from a generally applicable

benefit program—they do not have to be. Indeed, a

number of state appellate courts have already upheld

tax-credit scholarship programs and similar programs

against challenges brought under their states’ respective no-aid provisions.3 Concluding that Montana’s application of its Blaine Amendment violates the First

Amendment will encourage other state courts to follow

those states’ lead rather than Montana’s—protecting

Eighteen States have tax-credit scholarship programs similar to the one Montana’s Supreme Court invalidated based on

Montana’s no-aid provision. See infra Part III.

rather than infringing their residents’ First Amendment rights.

A. The text of the vast majority of state

Blaine Amendments permits states to include religious organizations in generally

applicable tax-credit scholarship programs.

With a few exceptions, state no-aid provisions

share common roots. In 1875, amidst simmering antiCatholic sentiment, Rep. James Blaine of Maine proposed an amendment to the U.S. Constitution forbidding States from using tax dollars to fund sectarian

schools, which notably excluded the then-pervasivelyProtestant public schools. Mark Edward DeForrest, An

Overview and Evaluation of State Blaine Amendments:

Origins, Scope, and First Amendment Concerns, 26

Harv. J.L. & Pub. Pol’y 551, 556–73 (Spring 2003). Although his efforts failed, by the 1890s, approximately

thirty States had adopted such “Blaine-style amendments into their constitutions.” Id. at 573.

Largely because of this common origin, most Blaine

Amendments are quite similar. Although they vary in

some details—for example, some apply only to religious schools, while others apply more broadly to religious institutions—they share common language and

cover similar ground. As relevant here, almost all of

these no-aid provisions prohibit the same basic thing:

directing the State’s money to aid religious schools or

institutions. Georgia’s, for instance, provides that “[n]o

money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or

religious denomination or of any sectarian institution.”

GA. CONST. art. I, § II, ¶ VII. Kentucky’s states that

“[n]o portion of any fund or tax now existing, or that

may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of,

any church, sectarian or denominational school.” KY.

CONST. § 189. And Indiana’s reads: “No money shall be

drawn from the treasury, for the benefit of any religious or theological institution.” IND. CONST. art. 1, § 6.

These prohibitions, however, need not implicate

tax-credit scholarship programs. The programs (1) do

not use or appropriate the State’s money, because tax

credits are not public funds; and (2) do not appropriate

or use the State’s money “in aid of ” or “to support” religious institutions, because both the credits and the

scholarships go to and are intended to benefit students.

1. No-aid provisions generally forbid the

use of only the State’s money, but taxcredit scholarship programs do not

draw from the state treasury.

Almost every state Blaine Amendment limits only

the use to which a state may put the state’s own money.

Many of these provisions prohibit the use of “public

funds” or “public money,” terms which, in the 19th century as today, limit the provisions’ application to the

State’s money, “as distinguished from private [citizens’].” William C. Cochran, Students’ Law Lexicon –

A Dictionary of Legal Words and Phrases 222 (1888)

(defining “public”); see also Henry Campbell Black,

Dictionary of Law at 963 (1st ed. 1891) (“public money”

means “all the funds of the general government derived from the public revenues”); id. at 962 (“public

funds” means the “funded public debt of a state or nation” or “the funds (money) belonging to a state or nation as such, and in the possession of its government”

(emphasis added)).4 A number prohibit taking or drawing money from “the treasury,” meaning “a place where

the public revenues are deposited and kept, and where

money is disbursed to defray the expenses of government.” Id. at 1186.5 Several prohibit using “revenue

of the state,” “tax[es],” or “[m]oney raised,” meaning

money collected by the State through “a tax, as a

means of collecting revenue.” Id. at 993 (defining “raise

revenue”); see also Cochran, Law Lexicon at 254 (“tax”

means “a sum assessed against and collected from a

citizen for the support of the government”).6 And most

prohibit any “appropriation” to religious organizations,

a term well known as the “act by which the legislative

department of government designates a particular

fund, or sets apart a specified portion of the public

See, e.g., ALASKA CONST. art. VII, § 1 (“public funds”); NEB.

CONST. art. VII, § 11 (same); S.C. CONST. art. XI, § 4 (same); MASS.

CONST. art. XVIII, § 2 (“public money”); MINN. CONST. art. XIII, § 2

(same); OKLA. CONST. art. II, § 5 (same).

See, e.g., GA. CONST. art. I, § II, ¶ VII; IND. CONST. art. 1,

§ 6; WIS. CONST. art. I, § 18.

See, e.g., FLA. CONST. art. I, § 3 (“revenue of the state”);

ARIZ. CONST. art. IX, § 10 (“tax”); N.H. CONST. pt. 2, art. 83

(“money raised”).

revenue or of the money in the public treasury, to be

applied to some general object of governmental expenditure.” Black, Dictionary of Law at 82 (emphasis

added); see also Cochran, Law Lexicon at 21 (“Appropriation, . . . [is] provision for the support of the government, or the payment of its various debts and

obligations.”).7 In short, the Blaine Amendments in

these States—36 of the 37—limit only what a state can

do with the State’s own money.8

A state does not use state money when it provides

tax credits in the typical tax-credit scholarship program. When a state provides a tax credit, it does not

take money out of the treasury and give it to the taxpayer. Rather, it merely tells the taxpayer that he does

not have to pay the amount of the credit into the treasury. In other words, tax credits allow citizens to “spend

their own money, not money the State has collected.”

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125,

142 (2011). Indeed, equating tax credits with the appropriation of public funds wrongly “assumes that income should be treated as if it were government

property even if it has not come into the tax collector’s

hands.” Id. at 144; see also Kotterman v. Killian, 972 P.2d

606, 618 (Ariz. 1999) (“Indeed, under such reasoning

See, e.g., ALA. CONST. art. IV, § 73; id. art. XIV, § 263; CAL.

CONST. art. XVI, § 5; id. art. IX, § 8; N.M. CONST. art. XII, § 3; PA.

CONST. art. III, § 15; UTAH CONST. art. I, § 4; id. art. X, § 9; VA.

CONST. art. IV, § 16; WYO. CONST. art. I, § 19; id. art. 3, § 36.

Michigan is the exception: Michigan’s no-aid provision expressly prohibits the State from providing a “tax benefit, exemptions or deductions” to support attendance of students at any

nonpublic school. See MICH. CONST. art. VIII, § 2.

all taxpayer income could be viewed as belonging to the

state because it is subject to taxation by the legislature.”). Although the economic consequences of tax

credits and government expenditures may be similar,

the former are beyond the reach of state Blaine

Amendments that by their terms prohibit states only

from paying money from their treasuries to aid religious organizations.

State courts around the country have acknowledged

the difference between appropriating money from the

state treasury and merely providing tax credits. For example, in upholding Arizona’s tax-credit scholarship

program, the Arizona Supreme Court reasoned that

tax credits are not “public money” as that term is used

in Arizona’s no-aid provision because “no money ever

enters the state’s control as a result of this tax credit,”

and “[n]othing is deposited in the state treasury or

other accounts under the management or possession of

governmental agencies or public officials.” Kotterman,

972 P.2d at 618 (emphasis in original). The Georgia Supreme Court relied on the same logic in rejecting a

challenge to Georgia’s scholarship program on standing grounds, explaining that Georgia’s program “does

not involve the distribution of public funds out of the

State treasury because none of the money involved in

the Program ever becomes the property of the State of

Georgia.” Gaddy v. Ga. Dep’t of Revenue, 802 S.E.2d

225, 231 (Ga. 2017). In rejecting another such challenge, the Florida First District Court of Appeal agreed

that “tax credits received by taxpayers who have contributed to [scholarship organizations] are not the

equivalent of revenues remitted to the state treasury.”

McCall v. Scott, 199 So. 3d 359, 366 (Fla. 1st Dist. App.

2016). And several state courts have rejected the argument that tax credits amount to forbidden “appropriations” to religious institutions. See, e.g., Gaddy, 802

S.E.2d at 230 (“Plaintiffs do not allege, and cannot

demonstrate, that the Program’s tax credits represent

money appropriated from the state treasury.”); Magee

v. Boyd, 175 So. 3d 79, 121 (Ala. 2015) (“Traditional definitions of ‘appropriations’ do not extend to include tax

credits.”); In re N.C.B. Careers, 298 N.W.2d 526, 528

(S.D. 1980) (a tax exemption is permissible because

“[n]o monies have been appropriated, nor has anything

else been given to aid religion”); cf. Gilligan v. Attorney

General, 595 N.E.2d 288, 291 (Mass. 1992) (holding

that the “proposed tax credits did not set aside monies

in the treasury and, thus, could not be viewed as an

appropriation”).

The upshot is clear: providing tax credits is not the

same thing as using the State’s money, so Blaine

Amendments that prohibit only the use of the State’s

money to aid religious institutions need not be interpreted to prohibit tax-credit scholarship programs.

2. Blaine Amendments forbid using the

State’s money for the purpose of supporting religious institutions, but typical tax-credit scholarship programs

are intended to benefit the students

who receive the scholarships and do

not direct benefits to any particular

schools.

State no-aid provisions use a handful of synonymous phrases to prevent the government from providing public funds to religious schools or institutions.

Most if not all of them prohibit payments directed to or

intended to benefit religious institutions, but not payments that benefit those institutions only incidentally.

True to their nickname, many of the no-aid provisions

prohibit appropriations made or money used “in aid of ”

religious institutions—connoting an intention or purpose to provide “active support or assistance” to those

institutions. Black, Dictionary of Law at 56 (defining

“aid”).9 Others prohibit appropriations or payments or

money used “for the support of ” or “to help support or

sustain” or “in maintenance of ” religious institutions,

terms that connote directly “supply[ing] funds for” the

institutions. Noah Webster, An American Dictionary of

the English Language (1st ed. 1828) (defining “support”); Black, Dictionary of Law at 742 (“Maintenance”

means “support” or the “furnishing by one person to

See, e.g., COLO. CONST. art. IX, § 7; DEL. CONST. art. X, § 3;

KY. CONST. § 189; N.Y. CONST. art. XI, § 3.

another, for his support”).10 Several prohibit appropriations made for the “benefit of ” such institutions.11

Some expressly prohibit appropriations or payments

made “for any sectarian purpose.”12 And a few prohibit

public funds being “applied to” or for religious institutions, which connotes a direct payment to such institutions. Black, Dictionary of Law at 80 (defining

“apply” to mean “to appropriate and devote to a particular use”).13

The tax-credit scholarship programs at issue are

not set up to direct support or benefits to religious

schools. Instead, they direct benefits to parents and

students in the form of scholarships supported by the

associated tax credits. These programs are not set up

to “pay the costs of ” religious organizations, Webster’s

New Collegiate Dictionary 1162 (1979) (defining “support”), furnish religious organizations with “[the state’s]

support” or “the means of living,” Black, Dictionary of

Law at 742 (defining “maintenance”), keep the religious organization “in an existing state,” or “bear

the expense of ” its operation. Webster’s at 687 (defining

See, e.g., ALA. CONST. art. XIV, § 263 (“support”); WASH.

CONST. art. I, § 11 (same); HAW. CONST. art. X, § 1 (“support or

benefit”); IDAHO CONST. art. IX, § 5 (“to help support or sustain”);

N.Y. CONST. art. XI, § 3 (“maintenance of ”); but see MICH. CONST.

art. VIII, § 12 (“support the attendance of any student”).

See, e.g., MINN. CONST. art. I, § 16; OR. CONST. art. I, § 5;

S.D. CONST. art. VI, § 3.

See, e.g., ILL. CONST. art. X, § 3; MO. CONST. art. IX, § 8;

NEV. CONST. art. 11, § 10.

See, e.g., ARIZ. CONST. art. II, § 12; N.H. CONST. pt. 2, art.

83; UTAH CONST. art. I, § 4.

“maintain”). Much less do the credits provide “active

support and assistance” to the religious organization.

Black, Dictionary of Law at 56 (defining “aid”). Students and their families are the only direct or intended

beneficiaries of the tax credits that underpin these

scholarship programs.

This Court’s jurisprudence reflects the understanding that programs that provide benefits to student and

their families should not be viewed as directing benefits to religious organizations. In Mueller, this Court

explained that a tax deduction’s “assistance” went to

parents, allowing them to “deduct their children’s educational expenses,” and that any benefit to “parochial

schools” from a tax deduction “ultimately controlled by

the private choices of individual parents” was “attenuated” at best. 463 U.S. at 400. In Board of Education v.

Allen, this Court upheld a textbook loan program because the “financial benefit is to the parents and children, not . . . schools.” 392 U.S. 236, 244-45 (1968). And

in Zelman, when upholding Cleveland’s tuition assistance program, this Court again recognized that the

program “confers educational assistance directly to . . .

any parent of a school-age child who resides in the

Cleveland City School District,” rather than to any religious or non-religious private school. 563 U.S. at 653.

In each of these cases, this Court refused to consider

aid actually supplied to students or their parents to be

benefits directed towards religious schools.

State courts have regularly taken the same view.

For example, the Arizona Supreme Court has explained that “[t]he primary beneficiaries of this [tax]

credit are taxpayers who contribute to the [school tuition organizations], parents who might otherwise be

deprived of an opportunity to make meaningful decisions about their children’s educations, and the students

themselves.” Kotterman, 983 P.2d at 283. The Indiana

Supreme Court agrees, reasoning that “any benefits

that may be derived by program-eligible schools [were]

ancillary to the benefit conferred on families[.]” Meredith v. Pence, 984 N.E.2d 1213, 1229 (Ind. 2013). In upholding Missouri’s tuition-assistance program, the

Missouri Supreme Court cited favorably the argument

that the program “is designed and implemented for the

benefit of the students, not of the institutions, and that

the awards are made to the students, not to the institutions.” Ams. United v. Rogers, 538 S.W.2d 711, 720

(Mo. 1976). Other state courts are in accord. See Jackson v. Benson, 578 N.W.2d 602, 621 (Wis. 1998) (“incidental benefit” to schools not prohibited); State ex rel.

Gallwey v. Grimm, 48 P.3d 274, 285 (Wash. 2002) (purpose of grant is to “assist” students).

Similar logic can and should be applied even to the

Blaine Amendments in eight states that prohibit appropriations or payments made “directly or indirectly”

in aid of religious institutions. See FLA. CONST. art. I,

§ 3; GA. CONST. art. I, § II, para. VII; MICH. CONST. art.

VIII, § 2; MO. CONST. art. I, § 7; MONT. CONST. art. X,

§ 6; N.Y. CONST. art. XI, § 3; OKLA. CONST. art. II, § 5;

VA. CONST. art. IV, § 16. These scholarship programs

may provide incidental benefits to religious schools in

the form of tuition dollars from students who choose to

use their scholarships to attend religious schools. But

such incidental benefits do not necessarily implicate a

prohibition on “indirect” state aid. As the New York

Court of Appeals reasoned in upholding a generally

applicable textbook program that included religious

schools, “the words ‘direct and indirect’ ” can be read to

“relate solely to the means of attaining the prohibited

end of aiding religion as such.” Bd. of Educ. of Cent.

Sch. Dist. No. 1 v. Allen, 228 N.E.2d 791, 794 (N.Y.

1967), aff ’d 392 U.S. 236 (1968) (finding no evidence

that the textbook loan statute was a “verbal smoke

screen designed . . . to circumvent the . . . State Constitution”). In other words, a prohibition on “indirect” aid

need not proscribe “every form of legislation, the benefits of which, in some remote way, might inure to parochial schools.” Id. Rather, such a prohibition can be

construed merely as a bar against pretextual appropriations: attempts to use an indirect means to achieve a

prohibited purpose of aiding religious institutions.

Viewed in this way, a prohibition on “indirect aid”

would bar a veiled attempt to benefit religious schools

(e.g., by appropriating funds to a secular shell company), but not “a program aimed at improving the

quality of education in all schools” that happens to benefit religious schools too. Id.

B. Judicial constructions of the Blaine

Amendments of at least nine states already permit including religious organizations in a generally applicable

tax-credit scholarship program.

Courts in nine states have already construed their

states’ Blaine Amendments in a way that permits

these programs, thus avoiding any potential violation

of the First Amendment. The courts of Alabama, Georgia, Arizona, Florida, and Illinois have each permitted

tax-credit scholarship programs to coexist with their

no-aid provisions. See Kotterman, 972 P.2d at 606;

Magee, 175 So. 3d at 135-37; Toney v. Bower, 744

N.E.2d 351, 358 (Ill. App. 4th Dist. 2001); Griffith v.

Bower, 747 N.E.2d 423, 426 (Ill. App. 5th Dist. 2001);

Gaddy, 802 S.E.2d at 225 (denied challenge on standing grounds); McCall, 199 So. 3d at 359 (similar).

At least four other states have read their no-aid

provisions as either similar to or coextensive with the

First Amendment. See Jackson, 578 N.W.2d at 620;

Ams. United for Separation of Church & State Fund,

Inc. v. State, 648 P.2d 1072, 1081-82 (Colo. 1982);

Springfield Sch. Dist., Del. Cnty. v. Dep’t of Educ., 397

A.2d 1154, 1170 (Pa. 1979); Eugene Sand & Gravel, Inc.

v. City of Eugene, 558 P.2d 338, 348 (Or. 1976). Since

the federal Establishment Clause and Free Exercise

Clause do not preclude states from enacting a generally applicable tax-credit scholarship program that

includes religious institutions, neither would these

states’ no-aid provisions.

To be sure, each state’s Blaine Amendment has its

own legal and historical context that informs its meaning and application. But if this Court were to conclude,

as it should, that prohibiting tax-credit scholarship

programs because they incidentally benefit religious

institutions violates the First Amendment, other states

are likely to interpret their common language in line with

existing precedent. If a particular Blaine Amendment

could be read either way—to prohibit such a program

or to permit it—the constitutional avoidance doctrine

will counsel in favor of an interpretation that permits

the program.

III. The decision below, if affirmed, will jeopardize numerous school choice programs across

the country, harming children who are religious, impoverished, and disabled.

While reversal sends a message to state courts instructing them to respect religious protections, affirmance risks the opposite result. Because a significant

majority of states have similar Blaine Amendments,

see supra Part II, affirming the Montana Supreme

Court’s decision may have implications far beyond

Montana. Upholding the decision below may well embolden other state supreme courts to interpret their

own states’ Blaine Amendments as strict prohibitions

on even incidental benefits to religious schools. In

states that follow the Montana Supreme Court’s lead,

the result would be to wholly eliminate those states’

tax-credit scholarship programs. This would risk harming students in those states, many of whom are low income or have disabilities. It would also punish parents

for exercising their religion in the use of a facially neutral program. Finally, it may also harm individuals in

other school choice programs and in many other benefit programs with religious participants.

A. Affirmance would jeopardize scholarship programs that help more than a

quarter million students, especially lowincome and disabled children.

Besides Montana, eighteen other states operate

similar tax-credit scholarship programs: Alabama, Arizona, Florida, Georgia, Illinois, Indiana, Iowa, Kansas,

Louisiana, Minnesota, Nevada, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, South Carolina,

South Dakota, and Virginia. U.S. GOV’T ACCOUNTABILITY OFFICE, Private School Choice: Requirements for

Students and Donors Participating in State Tax Credit

Scholarship Programs (Sept. 2018); see also MINN.

STAT. ANN. § 290.0674. According to recent numbers,

over 250,000 students participate in these tax-credit

scholarship programs. Id. at 28-30 (over 250,000

scholarships distributed, not including Georgia and

Louisiana); GA. CENTER FOR OPPORTUNITY, Georgia

School Choice Handbook, 2019 Parents Guide 11

(13,247 Georgia students); LA. DEP’T OF EDUC., 20172018 Annual Report on the Tuition Donation Credit

Program (1,896 Louisiana students). Fifteen of these

states have Blaine Amendments.14

Many of the children in these programs may be too

poor to afford their current schools without a scholarship. In New Hampshire, 57.1% of its scholarship

Iowa, Louisiana, and Rhode Island do not have Blaine

Amendments, but do have other church-state separation provisions. See, e.g., R.I. CONST. art. I, § 3 (“no person shall be compelled to frequent or to support any religious worship, place, or

ministry”); see also IOWA CONST. art. I, § 3; LA. CONST. art. I, § 8.

students are at or below 185% of the federal poverty

level. CHILDREN’S SCHOLARSHIP FUND, Scholarship Organization Report (July 16, 2019); GIVING AND GOING

ALLIANCE, Scholarship Organization Report (July 26,

2019). Similarly, South Dakota has 59% of its scholarship students coming from low income households.

S.D. PARTNERS IN EDUC., Program Summary. In Arizona, nearly 46% of scholarship dollars went to students from families that are similarly low income.

ARIZ. DEP’T OF REVENUE, School Tuition Organization

Income Tax Credits in Arizona, Summary of Activity:

FY 2016/2017. The percentage of low-income scholarship students in Alabama is a staggering 93%. ALA.

DEP’T OF REVENUE, 2017 Scholarship Granting Organization Public Report Information. And in Kansas, all

of the students come from households at or below 130%

of the federal poverty level. KAN. STAT. ANN. § 724352(d)(1)(A) (applying § 72-5132(c)(1)); KAN. DEP’T OF

EDUC., Tax Credit for Low Income Students Scholarship Program, Legislative Report for 2019. Some scholarships programs that are not exclusive to low income

students still set aside a minimum amount of scholarships for low-income students. See, e.g., OKLA. STAT. tit.

68, § 2357.206(G)(7)(d). Without a scholarship, many of

these students may be forced to leave their current

schools.

Other children may lose access to high quality services for their special needs without these programs.

South Carolina provides scholarships exclusively to

students with disabilities. See S.C. CODE ANN. § 12-63790. Arizona has one scholarship program exclusively

for students in foster care and students with disabilities. See ARIZ. REV. STAT. § 43-1505(E). Several other

states also provide special scholarships for students with

disabilities. See, e.g., OKLA. STAT. tit. 68, § 2357.206(G)(2)(3); VA. CODE ANN. § 58.1-439.28(C). All of these programs involve participation from religious students

and schools that, under the reasoning of the court below, would require the programs to end.

The loss of these educational benefits matters because in many states students receive a better education when their parents are able to choose the best

school for them. See Anna J. Egalite & Patrick J. Wolf,

A Review of the Empirical Research on Private School

Choice, 91 PEABODY J. EDUC. 441 (2016); Greg Forster,

A Win-Win Solution: The Empirical Evidence for

School Choice, FRIEDMAN FOUND. FOR EDUC. CHOICE

(May 2016). These trends hold true with tax-credit

scholarships. For example, in Nevada, over 2/3rds of

students demonstrated maintenance or growth in

standardized test scores, with results improving the

longer students participate in the scholarship program. See NEV. DEP’T OF EDUC., Nevada Opportunity

Tax Credit Scholarship Program, Fact Sheet (Nov.

2018). For the states with means-tested tax-credit

scholarships, the program helps not only low-income

students but also low-performing students who can

find a better school once they receive a scholarship. See

David Figlio et al., Who Uses a Means-Tested Scholarship, and What Do They Choose?, 29 ECON. EDUC. REV.

301 (2010). One study even found that Florida’s taxcredit scholarship increased education outcomes in

public schools because of the increased competitive

pressure from nearby private schools. See David Figlio

and Cassandra M. D. Hart, Competitive Effects of

Means-Tested School Vouchers, 6 AM. ECON. J.: APPLIED

ECON. 133 (2014). Thus, states have a legitimate and

important interest in enacting these programs—interests that are undermined by the decision below.

B. Affirmance will sanction state disapproval

of religious choices.

The harm imposed by the decision below on the

disadvantaged and disabled is, of course, collateral

damage; the explicit target has always been families of

faith. And the targeting is successful in both purpose

and effect. The Montana Supreme Court’s application

of their Blaine Amendment explicitly singles out parents who choose religious schools for disfavored treatment. And because the beneficiaries of these programs

are indeed primarily receiving an education from

religiously affiliated schools, the effect of the decision

below is to disproportionally suppress educational activities by and for people of faith.

1. Contrary to the Montana Supreme Court’s

suggestion, the disproportionate use of scholarships at

religious schools is not because these state programs

somehow prefer religious schools over secular ones.

See Pet. App. 27-30. Neither Montana’s program nor

any other state tax-credit scholarship program limits

participation to religious schools. Instead, many states

have a higher participation for religious schools

because religious organizations are more proactive in

providing educational choice, especially to those who

cannot afford it, and because parents disproportionately choose religious schools for their children regardless of which schools participate in the state’s program.

In sixteen of the eighteen states with tax-credit

scholarships, the majority of private schools are religious schools. See U.S. DEP’T OF EDUC., NAT’L CENTER

FOR EDUC. STATISTICS, Private School Universe Survey,

2017-2018 Data Files. For twelve of these states, over

2/3 of their private schools are religious. Id. (cited in

Zelman, 536 U.S. at 657).15 For those states with a high

proportion of religious schools, high religious participation is inevitable.

Beyond that baseline statistic, religious schools

are more likely than secular schools to participate in

these programs. For example, approximately 54% of

Florida’s private schools are religious, but 67% of the

schools that joined its tax-credit scholarship program

are religious. FLA. DEP’T OF EDUC., OFFICE OF INDEP.

EDUC. & PARENTAL CHOICE, Florida Private School

Directory; FLA. DEP’T OF EDUC., Florida Tax Credit

Scholarship Program, June 2019 Quarterly Report.

This data is limited to schools with responses to the U.S.

Department of Education’s survey. The National Center for Education Statistics also separately estimates that there are 32,461

total private schools in the U.S., 66.4% of which are religious. U.S.

DEP’T OF EDUC., NAT’L CENTER FOR EDUC. STATISTICS, Private

School Universe Survey, 2017-2018 Data Files, Number and percentage distribution of private schools, students, and full-time

equivalent (FTE) teachers, by religious or nonsectarian orientation of school: United States, 2017-18.

Similarly, in Oklahoma, approximately 85% of the

private schools are religious, but 89% of the schools in

the tax-credit scholarship program are religious. U.S.

DEP’T OF EDUC., NAT’L CENTER FOR EDUC. STATISTICS,

Private School Universe Survey, 2016-17 Data Files

and 2017-2018 Data Files; OPPORTUNITY SCHOLARSHIP

FUND, Our Member Schools (listing 70 members and

acknowledging additional schools); OKLA. ISLAMIC SCH.

FOUND., FAQs, (two Islamic schools). Even in New

Hampshire, where private schools are primarily nonsectarian, religious schools comprise almost 60% of

participating schools in its tax-credit scholarship. N.H.

DEP’T OF EDUC., School Information; CHILDREN’S SCHOLARSHIP FUND, Scholarship Organization Report (July

16, 2019); GIVING AND GOING ALLIANCE, Scholarship Organization Report (July 26, 2019).

Religious schools show up in such strong numbers

in part because parents overwhelmingly prefer them.

Even accounting for the predominantly religious options in a scholarship program, parents still disproportionately choose religious schools. In Florida’s program,

where 67% of the options are religious schools, 83% of

the scholarship students enroll in religious schools.

FLA. DEP’T OF EDUC., Florida Tax Credit Scholarship

Program, June 2019 Quarterly Report. In New Hampshire, where 60% of the options are religious schools,

66% of the scholarship students enroll in religious

schools. CHILDREN’S SCHOLARSHIP FUND, Scholarship

Organization Report (July 16, 2019); GIVING AND GOING

ALLIANCE (July 26, 2019). In Nevada, where 78% of the

options are religious schools, 97% of the scholarship

students enroll in religious schools. AAA SCHOLARSHIP

FOUND., INC., 2018-2019 Mid-year Scholarship Organization Information; CHILDREN’S TUITION FUND, 20182019 Mid-year Scholarship Organization Information;

DINOSAURS & ROSES, 2018-2019 Mid-year Scholarship

Organization Information; EDUC. FUND OF N. NEV., 20182019 Mid-year Scholarship Organization Information.

Again, the reasoning of the court below is not

limited to tax-credit scholarship programs; the harm

extends to other school choice and social services programs. In Oklahoma, the Lindsey Nicole Henry (LNH)

Scholarship Program provides scholarships for students with disabilities, and 91% of its participating

schools are religious. OKLA. STATE DEP’T OF EDUC.,

Lindsey Nicole Henry Approved Private Schools (July

3, 2019). Ohio—which never passed a Blaine Amendment—runs a school-choice program that treats religious and nonreligious schools on equal terms. See

OHIO REV. CODE § 3310.01, et seq. Equal treatment

has served only to benefit Ohio students, as illustrated

by the fact that parents often choose religious schools

for their children. Patrick O’Donnell, Almost all of

Ohio’s voucher cash goes to religious schools, THE

PLAIN DEALER (Mar. 12, 2017). These programs would

likely fail Montana’s expansive interpretation of

Blaine Amendments.

Moving beyond school choice, in Oklahoma, the Office of Community and Faith Engagement partners

with religious organizations to address the state’s social service needs, including disaster relief and health

initiatives for children. OKLA. DEP’T OF HUMAN SERVS.,

Office of Community and Faith Engagement Office Information (Feb. 26, 2018). In Georgia, most of the private agencies that contract with the state for the

adoption of special needs children are religious. GA.

DIV. OF FAMILY & CHILDREN SVCS., AdoptUSKids (April

2019). And because religious groups are especially active in healthcare, many state Medicaid programs also

fund sectarian hospitals. For example, SSM Health

operates multiple hospitals in Missouri, Oklahoma, Illinois, and Wisconsin with the express mission statement: “Through our exceptional health care services,

we reveal the healing presence of God.” SSM HEALTH,

About SSM Health, Our Mission & Values, 2019. All of

these programs may “effectively subsidize[ ]” religion,

Pet. App. 28, and therefore be in jeopardy if the First

Amendment does not protect against an expansive prohibition on religion.

2. The Montana Supreme Court found this disproportionate religious participation problematic, Pet.

App. 30, but the religious status of those who seek

the benefits of these school choice programs does not

pose any First Amendment problems. In Mueller, for

example, this Court “rejected an Establishment Clause

challenge to a Minnesota program authorizing tax deductions for various educational expenses, including

private school tuition costs, even though the great majority of the program’s beneficiaries (96%) were parents of children in religious schools.” Zelman, 536 U.S.

at 649-50 (citation omitted). The Court stated it “would

be loath to adopt a rule grounding the constitutionality

of a facially neutral law on annual reports reciting

the extent to which various classes of private citizens

claimed benefits under the law.” Mueller, 463 U.S. at

401. The same was true of the program upheld in Zelman, where the Court held that merely because “46 of

the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause.” Zelman, 536 U.S.

at 656; see also id. at 658. Otherwise, the Constitution

would impose higher burdens on communities that are

especially religious. Id. at 657-58.

Rather, the opposite is true: if state law requires

abolishing public benefits with high participation from

people of faith, that would create serious Establishment and Free Exercise Clause concerns. Because the

“preponderance of religiously affiliated private schools

certainly did not arise as a result of the program,” Zelman, 536 U.S. at 656-57, but instead from religiouslymotivated private choice, striking down a program

based on those faith-based choices profoundly impinges on free exercise rights, see Lukumi, 508 U.S. at

524 (striking down law that targeted “conduct motivated by religious beliefs”).

Put differently, state constitutions that prohibit

neutral programs incidentally benefitting religious

schools ultimately punish parents for exercising their

religion. See Trinity Lutheran, 137 S. Ct. at 2020. It

punishes religious organizations for being particularly

active in specific social welfare spaces—such as education or healthcare—choices that are themselves often

faith-based. It tells religious organizations zealously

promoting education that the more successful they are

in educating more students, the more likely they are to

cause invalidation of a state program. The decision below takes a truly neutral education program and then

tells the organizations, parents, and children that are

most eager to participate they are creating constitutional issues solely because they are religious. It “reserve[s] special hostility for those who take their

religion seriously, who think that their religion should

affect the whole of their lives, or who make the mistake

of being effective in transmitting their views to children.” Mitchell, 530 U.S. at 827-28. According to the

Montana Supreme Court, faith makes one a pariah as

a matter of state constitutional law, whereby participation by religious persons so infects a generally available program that it must be excised entirely. The First

Amendment does not tolerate such hostility.

------------------------------------------------------------------

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted,

CHRISTOPHER M. CARR

Georgia Attorney General

ANDREW A. PINSON

Solicitor General

KURTIS G. ANDERSON

Asst. Attorney General

MARK BRNOVICH

Arizona Attorney General

O.H. SKINNER

Solicitor General

ANDREW G. PAPPAS

Deputy Solicitor General

MIKE HUNTER

Oklahoma Attorney General

MITHUN MANSINGHANI

Solicitor General

Counsel of Record

ZACH WEST

BRYAN CLEVELAND

Asst. Solicitors General

OKLAHOMA OFFICE OF

THE ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

(405) 522-4392

mithun.mansinghani@

oag.ok.gov

September 17, 2019

Counsel for Amici

STEVE MARSHALL

Alabama Attorney General

PHIL BRYANT

Governor of Mississippi

KEVIN G. CLARKSON

Alaska Attorney General

ERIC SCHMITT

Missouri Attorney General

LESLIE RUTLEDGE

Arkansas Attorney General

DOUG PETERSON

Nebraska Attorney General

DEREK SCHMIDT

Kansas Attorney General

DAVE YOST

Ohio Attorney General

MATT BEVIN

Governor of Kentucky

JASON R. RAVNSBORG

South Dakota

Attorney General

JEFF LANDRY

Louisiana Attorney General

HERBERT H. SLATERY III

Tennessee Attorney General

KEN PAXTON

Texas Attorney General

SEAN D. REYES

Utah Attorney General

PATRICK MORRISEY

West Virginia

Attorney General

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.