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

Supreme Court briefSep 18, 2019

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No. 18-1195

IN THE

Supreme Court of the United States

————

KENDRA ESPINOZA, JERI ELLEN ANDERSON,

AND JAIME SHAEFER,

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

Montana Supreme Court

____________________________________________________________________________________________________

BRIEF FOR AMICI CURIAE

AMERICANS FOR PROSPERITY AND YES. EVERY KID.

IN SUPPORT OF PETITIONERS

————

CYNTHIA F. CRAWFORD

Counsel of Record

CAUSE OF ACTION INSTITUTE

1875 Eye Street, NW, Suite 800

Washington, DC 20006

(202) 499-2421

cynthia.crawford@causeofaction.org

Counsel for Amici Curiae

September 18, 2019

QUESTION PRESENTED

Does it violate the Religion Clauses or Equal Protection

Clause of the United States Constitution to invalidate a

generally available and religiously neutral student-aid

program simply because the program affords students

the choice of attending religious schools?

TABLE OF CONTENTS

Table of Authorities .................................................. iii

Interest of Amici Curiae..............................................1

Introduction .................................................................2

Summary of Argument................................................3

Argument .....................................................................7

The Montana Supreme Court Recast the

Montana Constitution and its History to

Unconstitutionally Penalize Private

Action by Any Party that Could Not Be

Verified as Non-Religious. ................................7

II.

This Court has Consistently Held that

Tax Credits are Not Appropriations and

Private Funds are Not Public Funds. ............13

III. By Targeting Religious Viewpoints, the

Montana Supreme Court Has Infringed

Freedom of Speech. .........................................15

IV. Under Yoder, the Ruling Infringes the

Rights of Parents to Raise Their Children. ...23

Conclusion .................................................................26

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Arizona Christian School Tuition Organization

v. Winn, 563 U.S. 125 (2011) ..................... 3, 13, 14

Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987) .............................................. 22

Buckley v. American Constitution Law

Foundation, Inc, 525 U.S. 182 (1999) ................... 7

Cleveland Board of Education v. LaFleur,

414 U.S. 632 (1974) .............................................. 24

Espinoza v. Montana Department of Revenue,

435 P.3d 603 (Mont. 2018) ........................... passim

Espinoza v. Montana Department of Revenue,

No. DV-15-1152C, 2017 WL 11317587

(Dist. Ct. Mont. May 23, 2017) .......................... 8, 9

Everson v. Board of Education of Ewing Township,

330 U.S. 1 (1947) .................................................. 13

Good News Club v. Milford Central School,

533 U.S. 98 (2001) ................................................ 15

Hill v. Colorado,

530 U.S. 703 (2000) .............................................. 22

Matal v. Tam,

137 S. Ct. 1744 (2017) .................................... 20, 21

Meyer v. Nebraska,

262 U.S. 390 (1923) ........................................ 23, 24

National Endowment for the Arts v. Finley,

524 U.S. 569 (1998) .............................................. 19

New York v. Ferber,

458 U.S. 747 (1982) .............................................. 16

Pierce v. Society of Sisters,

268 U.S. 510 (1925) .............................................. 24

Pleasant Grove City, Utah v. Summum,

555 U.S. 460 (2009) .............................................. 19

Prince v. Massachusetts,

321 U.S. 158 (1944) ........................................ 25, 26

R.A.V. v. City of St. Paul, Minnesota,

505 U.S. 377 (1992) .................................... 7, 16, 17

Reed v Town of Gilbert,

135 S. Ct. 2218 (2015) .................................... 17, 21

Rosenberger v. Rector & Visitors of

University of Virginia,

515 U.S. 819 (1995) .................................. 17, 18, 20

School District of Abington Township, Pennsylvania

v. Schempp, 374 U.S. 203 (1963) ......................... 12

Simon & Schuster, Inc. v. Members of New York

State Crime Victims Board,

502 U.S. 105 (1991) ........................................ 17, 22

Terminiello v. Chicago,

337 U.S. 1 (1949) .................................................. 16

Texas Monthly, Inc. v. Bullock,

489 U.S. 1 (1989) ............................................ 12, 13

Torcaso v. Watkins,

367 U.S. 488 (1961) .............................................. 12

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017) .................................... 12, 21

Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council, Inc.,

425 U.S. 748 (1976) .............................................. 18

Walz v. Tax Commission of the City of New

York,

397 U.S. 664 (1970) ........................................ 14, 15

Widmar v. Vincent,

454 U.S. 263 (1981) .............................................. 21

Wisconsin v. Yoder,

406 U.S. 205 (1972) .................................. 23, 24, 25

Constitutions

Montana Constitution Article X, Section 6 ............ 4, 8

Statutes

Montana Code Annotated § 15-30-3111 ................... 23

Montana Code Annotated § 20-5-102 ....................... 23

Other Authorities

Montana Department of Revenue, Individual and

Corporate Income Tax Biennial Report (2016),

available at http://bit.ly/2YUqQ3M .......................... 11

BRIEF OF AMICI CURIAE

AMERICANS FOR PROSPERITY AND YES. EVERY KID.

IN SUPPORT OF PETITIONERS

Pursuant to Supreme Court Rule 37.2, Americans

for Prosperity and yes. every kid. respectfully

submit this amicus curiae brief in support of

Petitioners.1

INTEREST OF AMICI CURIAE

Amicus curiae Americans for Prosperity (“AFP”) is

a 501(c)(4) nonpartisan organization that drives longterm solutions to the country’s biggest problems. AFP

and its activists engage friends and neighbors on key

issues and encourage them to take an active role in

building a culture of mutual benefit where people

succeed by helping one another.

Amicus curiae yes. every kid. believes the

purpose of education is to help all students discover,

develop and apply their unique abilities, establishing

a foundation for a life of fulfillment and success. yes.

every kid. supports education policy that respects

the dignity of every student, fosters a diversity of

approaches, and is open to the free flow of ideas and

innovation. yes. every kid. is a member of the Stand

Together community and is committed to working

1 In accordance with Supreme Court Rule 37.2(a), a

blanket consent has been granted by all parties. No

counsel for a party authored this brief in whole or in

part, and neither the parties, their counsel, nor

anyone except amici and their counsel, Cause of

Action Institute, financially contributed to preparing

this brief.

with anyone who supports policies that advance all

educational options for all kids.

Amici have a particular interest in this case

because they are national organizations dedicated to

ensuring families have every available educational

option to choose for their children. That includes the

freedom to choose the education that best fits a

student’s needs, whether it is a public school, private

school, charter school, or homeschooling. The use of

Blaine Amendments undermines the fundamental

freedom for families to select the education that best

serves their children.

INTRODUCTION

“All who have meditated on the art of governing

mankind have been convinced that the fate of empires

depends on the education of youth.” – Aristotle

The Montana Constitution includes a “Blaine

Amendment” that prohibits state “appropriation or

payment” to sectarian schools. The Montana Supreme

Court’s recent ruling, striking down a facially-neutral

school-choice program, demonstrates that Blaine

Amendments are fundamentally incompatible with

the First and Fourteenth Amendments.

Although the Montana school-choice program did

not directly fund sectarian schools, and thus might

have escaped constitutional review, the Montana

Supreme Court construed its amendment to require

excision of any possibility that religion may receive a

public benefit. In doing so, the court demonstrated

that it could not apply its Blaine Amendment without

labeling and discriminating against religious actors.

Moreover, the ruling exposed a fundamental

weakness of Blaine Amendments: their application to

constrain a neutral benefit will naturally infringe free

speech and due process rights, as well as free exercise.

The Montana Supreme Court’s construction is

binding on this Court, which must now decide

whether Montana’s Blaine Amendment can be

reconciled with the First and Fourteenth

Amendments. The broad implications of the Montana

Supreme Court’s ruling show that it cannot.

SUMMARY OF ARGUMENT

The Montana State Legislature enacted a taxcredit program that mirrors the program this Court

reviewed in Arizona Christian School Tuition

Organization v. Winn, 563 U.S. 125 (2011). That

program allows donors to claim tax credits for their

donations to private, non-profit scholarship

organizations but no tax money flows through the

State’s treasury, or from the treasury to any school—

either directly or indirectly—and the State has no

control over which student or school receive the

benefit of a scholarship.

By setting up the tax-credit program the way it

did, in addition to promoting “parental and student

choice in education,” the Legislature protected and

promoted a variety of rights, including: (1) the speech

rights of donors, parents, children, and educators, who

would be free to speak, listen, or financially support

speech as they chose; (2) the economic freedom of

donors and educators, who could use their own money

to support private endeavors according to their own

preferences; (3) the fundamental interest of parents in

the upbringing of their children, who could select the

most-responsive educational environment for their

children; and (4) the free exercise rights of donors,

parents, children, and educators, who could

independently elect to support or participate in

religiously-affiliated education. The statute was

drafted to avoid violating Montana’s Blaine

Amendment, which prohibits any “appropriation or

payment from any public fund or monies . . . for any

sectarian purpose or to aid any . . . school,” Mont.

Const., art. X, § 6(1), by ensuring that no

appropriation or payment of public monies was

implicated in the program.

In promulgating rules to implement the program,

however, the Montana Department of Revenue

changed the definition of “qualified education

provider” to exclude schools controlled by any

religious entity. This change nullified the provision

that had ensured the neutrality of the program by

allowing scholarships to be applied toward tuition at

any qualified school.

The district court resolved the initial legal

challenge to the program by relying on the plain

meaning of the constitutional provision, holding that

tax credits are not appropriations or public monies

and thus the tax-credit program did not violate the

Montana Constitution.

The Montana Supreme Court, by contrast,

interpreted the Montana Constitution to reach beyond

the State’s treasury and into the private pockets of

taxpayers to hold that the donation of private funds—

that the State could have taxed but did not—is akin

to an appropriation or use of public monies. This

judicial expansion of the constitutional text was the

hook to bring the neutral school-choice program

within the Blaine Amendment and opened the door for

scrutiny of potential religious entanglement. But the

program had no such identifiable entanglement.

Undeterred, the court concluded that the tax

credit’s very neutrality, which precluded the State

from discriminating between religious and nonreligious beneficiaries of scholarship funds, meant

that it was impossible to guarantee that religious

participants were excluded, and thus struck the entire

private

school

program—whether

religiouslyaffiliated or secular. The court allowed a parallel

program relating to tax credits for public school

contributions to stand however, thus violating not

only the free exercise rights of potential scholarship

recipients, but also the broader rights of all citizens—

religious or not—to deploy their personal funds, to

control the education of their children, and to express

their educational philosophies through direct

participation or financial support. All Montanans who

wished to participate in a neutral school choice

program were forced to suffer, alongside religious

citizens, with the loss of that choice. This ruling

exhibits an extraordinary degree of hostility to

religion, where the violation of myriad rights is

collateral damage to the court’s quest to root out

potentially religious participants from a facially

neutral program.

Moreover, by allowing the public option to stand

while striking the private option, the Montana

Supreme Court put its thumb on the scale in favor of

donations to public education by making support to

private schools more expensive than to public schools.

Now, donors with an interest in funding education

must pay more to express support for private schools

than they would to express the same degree of support

for public schools—an impermissible burden on the

free speech rights of the donors. This is not the neutral

benefit the Legislature enacted, which allowed the tax

credit for public, private, religious, or secular

donations, impartially providing tax relief for

educationally-minded taxpayers.

The ruling shows that no matter the degree of care

a legislature may take to avoid a Blaine Amendment

conflict and seek neutrality, by its very nature, a

constitutional quest to treat religious participants

differently from all others must end in encroachment

of multiple rights. That the Montana Supreme Court

did not even consider the free-speech or parentalrights implications of its decision shows the pernicious

effect of Blaine Amendments. They cannot be applied

to preclude participation in generally applicable

government

benefits

without

impermissible

examination of viewpoints and beliefs and

discrimination against those that are unfavored.

ARGUMENT

The Montana Supreme Court Recast the

Montana Constitution and its History to

Unconstitutionally

Penalize

Private

Action by Any Party that Could Not Be

Verified as Non-Religious.

The Montana Supreme Court’s recasting of Article

X of the Montana Constitution (“Article X”) to burden

constitutionally protected rights beyond the reach of

its plain text, is subject to review by this Court. This

Court has said that “‘voters may no more violate the

United States Constitution by enacting a ballot issue

than the general assembly may by enacting

legislation.’” Buckley v. Am. Constitution Law Found.,

Inc, 525 U.S. 182, 194 (1999) (quoting Buckley v. Am.

Constitution Law Found., Inc, 120 F.3d, 1092, 1100

(10th Cir. 1997)). Here, the Montana Supreme Court

put itself into the role of legislator by recasting the

law. That court’s construction of Article X is binding

on this Court. R.A.V. v. City of St. Paul, Minn., 505

U.S. 377, 381 (1992). Thus, its recasting of Article X is

subject to the same constitutional review as ballot

initiatives or legislative acts by any other lawmaker.

The Montana Constitution’s Text is

Clear and Does Not Reach Tax Credits.

Article X, Section 6 of the Montana Constitution,

which prohibits appropriations or payments from

public funds to aid sectarian schools, reads as follows:

Section 6. Aid

prohibited

sectarian schools. (1) The legislature,

counties, cities, towns, school districts,

and public corporations shall not make

any direct or indirect appropriation or

payment from any public fund or monies,

or any grant of lands or other property

for any sectarian purpose or to aid any

church, school, academy, seminary,

college, university, or other literary or

scientific institution, controlled in whole

or in part by any church, sect, or

denomination.

(2) This section shall not apply to funds

from federal sources provided to the

state for the express purpose of

distribution to non-public education.

According to the section’s plain text, the words

“direct or indirect” modify the terms “appropriation or

payment from any public fund or monies.” Thus, the

prohibition on aid to sectarian schools is limited to

appropriations or payments from public funds or

monies. The reach of this text is unambiguous and can

be expanded only by changing or inserting terms.

The district court’s opinion was in accord, using

straightforward textual analysis to note that:



The Montana Constitution is “silent regarding

tax credits,” and

The term “appropriation” does not encompass

tax credits.

Espinoza v. Mont. Dep’t of Revenue, No. DV-15-1152C,

2017 WL 11317587, at *3–4 (Dist. Ct. Mont. May 23,

2017). The district court’s observations are not only

self-evident, but also are consistent with the Montana

Supreme Court’s traditional reliance on a “long line of

Montana cases” confirming that “‘appropriation’

refers only to the authority given to the legislature to

expend money from the state treasury[.]” Id. at *3

(citing Nicholson v. Cooney, 877 P.2d 486, 491 (1994)).

Based on the plain text and a long line of state

precedent, the district court ruled for the plaintiffs

and held that the Department’s exclusionary rule was

based on an incorrect interpretation of the law.

Nevertheless, when the Department appealed, the

Montana Supreme Court abandoned its traditional

posture on “appropriations” and overturned the lower

court’s plain-language analysis, to conclude:



The section title, “Aid prohibited to sectarian

schools,” should be read to “manifest[ ] the

Delegates’ intent to broadly prohibit aid to

sectarian schools”;



The prohibited action, “direct or indirect

appropriation or payment,” should be read to

mean “direct or indirect aid”; and



Thus, the text demonstrates the Delegates’

intention to prohibit “‘any’ type of state aid” to

benefit sectarian education.

Espinoza v. Mont. Dep’t of Revenue, 435 P.3d 603, 609

(Mont. 2018) [hereinafter Espinoza II].

The limited constitutional prohibition on use of

public funds was thus transformed into a generalized

prohibition against all “aid.” The remainder of the

opinion routinely substituted “aid” for “appropriation

or payment,” judicially amending the text.

The Montana Supreme Court also examined the

history of the current Montana Constitution in light

of the original 1889 Montana Constitutional

Convention, which adopted a provision that read:

[T]he Legislative Assembly . . . shall

[n]ever make directly or indirectly, any

appropriation, or pay from any public

fund or monies . . . in aid of any church,

or for any sectarian purpose, or to aid in

the support of any school . . . controlled

in whole or in part by any church[.]

Espinoza II, 435 P.3d at 610 (quoting Mont. Const. of

1889, art. XI, § 8 (alterations in Espinoza II)). This

historical incarnation is relevant, the court surmised,

because “the 1972 Constitutional Convention

Delegates intended Article X, Section 6, to retain the

meaning of Article XI, Section 8 of the Montana

Constitution of 1889.” Id. at 611. If so, it does not

follow, as the court concluded, that the Delegates—

whether in 1889 or in 1972—intended the provision to

“broadly and strictly prohibit aid to sectarian schools,”

id., including in the form of income tax credits,

because the 1889 Delegates could not possibly have

had that construction in mind.

Indeed, the court’s entire analysis is historically

suspect because Montana did not even have a state

income tax until 1933.2 Nor did ratification of the

Sixteenth Amendment to the United States

Constitution occur until 1913. Thus, it cannot be the

case that the 1889 Delegates intended to include

income tax credits within the terms “appropriation” or

“public fund or monies,” nor could the 1972 Delegates

have inherited that definition from them.

Nevertheless, whatever may be gleaned from a

plain-text reading of Article X, or an historical review

of Montana’s constitutional delegations, the Montana

Supreme Court has now subsumed that analysis into

its construction of Article X, which cannot now be

saved by revisiting its text or its history. The court has

spoken: Article X demands the identification and

excision of religious actors from public benefits.

The Montana Supreme Court Was

Perversely Motivated by the Neutrality

of the Tax Credits that Made it

Impossible to Discriminate Against

Religious Participants.

By trying to root out religious participation from a

neutral program, the Montana Supreme Court

applied a framework that is wholly incompatible with

this Court’s Establishment Clause and Free Exercise

Clause jurisprudence. The Montana Supreme Court

struck down the entire tax-credit program for all

private schools—not because it could identify

See Mont. Dep’t of Revenue, Individual and

Corporate Income Tax Biennial Report, at 54 (2016),

available at http://bit.ly/2YUqQ3M.

payments to religious schools, but because it could not

prove a negative: that no private donations would ever

benefit religiously-affiliated schools. The court wrote:

There is simply no mechanism within

the Tax Credit Program itself that

operates to ensure that an indirect

payment of $150 is not used to fund

religious education . . . The Department

. . . has no ability to ensure that indirect

payments are not made to religious

schools . . . Because the Tax Credit

Program does not distinguish between

an indirect payment to fund a secular

education and an indirect payment to

fund a sectarian education, it cannot

under any circumstance, be construed as

consistent with Article X, Section 6.

Espinoza II, 435 P.3d at 613. In other words, the

program’s neutrality, which made it impossible to

single out religious participants, was its death knell.3

This Court has instructed that a state may not

establish a “religion of secularism.” See, e.g., School

Dist. Of Abington Twp., Pa. v. Schempp, 374 U.S. 203,

225 (1963). Nor can otherwise-eligible participants be

denied a benefit based on their religious status,

Trinity Lutheran Church of Columbia, Inc. v. Comer,

Had the program been non-neutral, conditioning

participation on religion or the lack thereof, that

distinction would have run afoul of the Free Exercise

Clause. See generally, e.g., Texas Monthly, Inc. v.

Bullock, 489 U.S. 1 (1989) (plurality opinion).

137 S. Ct. 2012, 2019 (2017), or failure to pass a

religious test. Torcaso v. Watkins, 367 U.S. 488, 496

(1961).

Here, the Montana Supreme Court violated both

precepts—ruling that the tax-credit program could

not comport with the Montana Constitution unless,

(1) all beneficiaries of the program were wholly

secular, and (2) it could be proven that any potentially

religious participants had been identified and

completely excluded. This ruling goes beyond

“exaggerated fears of contagion of or by religion”

Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 10 (1989),

and well into the mandatory religious inquiry that

this Court has found unconstitutional. See Everson v.

Bd. of Educ. of Ewing Twp., 330 U.S. 1, 26 (1947).

II.

This Court has Consistently Held that Tax

Credits are Not Appropriations and

Private Funds are Not Public Funds.

The Montana Supreme Court’s ruling rests on the

erroneous presumption that a tax credit is an indirect

payment from the Legislature to a private, religiouslyaffiliated school, equivalent to an appropriation or

payment from the state treasury. Espinoza II, 435

P.3d at 612. The opinion includes no citation to legal

authority for the notion that a taxpayer’s money is the

government’s money until, or even if, the government

decides not to take it.

This Court addressed a similar assertion in Winn

and held that a tax credit is not a governmental

expenditure for the purposes of establishing taxpayer

standing.4 563 U.S. at 141. The Court rejected the

premise 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. “Private bank

accounts cannot be equated with the . . . state

treasury.” Id.

At oral argument in Winn, several justices

expressed deep skepticism with the notion that any

money the government declines to take from a

taxpayer is still government money. Justice Scalia

remarked that it’s “a great leap to say that it’s

government funds, that any money the government

doesn’t take from me, because it gives me a deduction,

is government money.” Tr. 30:18–21. Likewise,

Justice Kennedy had “some difficulty [with the idea]

that any money that the government doesn’t take

from me is still the government’s money.” Tr. 31:12–

14. Justice Alito also found that there was “a very

important philosophical point here. You think that all

the money belongs to the government . . . except to the

extent that it deigns to allow private people to keep

some of it.” Tr. 35:13–19 (intervening response from

counsel omitted).

Nor is this perspective new. The Court addressed

a similar presumption regarding exemption from

property taxes in Walz v. Tax Commission of the City

of New York, 397 U.S. 664, 669–70 (1970). There, the

Amicus expresses no position on the wisdom or

propriety of using tax credits to support school choice.

However, if a tax-credit approach is implemented, it

should be recognized that untaxed money is private

property and not public property.

Court held that a property tax exemption for churches

was not equivalent to a transfer of state funds that

would implicate establishment concerns.

The grant of a tax exemption is not

sponsorship since the government does

not transfer part of its revenue to

churches but simply abstains from

demanding that the church support the

state. No one has ever suggested that tax

exemption has converted libraries, art

galleries, or hospitals into arms of the

state or put employees ‘on the public

payroll.’ There is no genuine nexus

between

tax

exemption

and

establishment of religion.

Id. at 675.

The Montana Supreme Court’s atextual expansion

of the language to deem that the donation of private

income exempted from taxation is akin to a

government expenditure undergirds its entire opinion

and provided the means by which that court could

invoke its Blaine Amendment to root out religious

viewpoints or participants.

III.

By Targeting Religious Viewpoints, the

Montana Supreme Court Has Infringed

Freedom of Speech.

The tax-credit program the Montana Legislature

passed was strictly neutral regarding the educational

viewpoints of donors, scholarship organizations,

students, parents, and educational organizations. It

was designed to facilitate access to a variety of

educational viewpoints, fostering diversity. This

Court has found this approach to be lawful and

laudatory. Good News Club v. Milford Cent. Sch., 533

U.S. 98, 114 (2001).

In reviewing this neutral program, however, the

Montana Supreme Court interpreted Article X to

exclude education from a religious viewpoint. As

shown above, that court’s interpretation was not

founded on the plain language of Article X.

Nevertheless, this Court is bound by the construction

given by the Montana court. See R.A.V., 505 U.S. at

381 (1992); New York v. Ferber, 458 U.S. 747, 769

n.24 (1982); Terminiello v. Chicago, 337 U.S. 1, 4

(1949). This Court must thus accept the Montana

Supreme Court’s expansive construction of the

Montana Blaine Amendment as requiring the

exclusion of not just state funding of religious

education, but also the exclusion of any benefit to

speech in support of religious education or secular

private education if secular speech cannot be

segregated from potentially religious speech. Article

especially

judicially

amended,

unconstitutional.

The Montana Supreme Court Has

Imposed Impermissible Viewpoint

Discrimination.

The issue of viewpoint discrimination in violation

of the First Amendment was not raised below because

it was not an element of the tax-credit program or the

district court’s opinion. Rather, the issue originated

with the Montana Supreme Court’s denial of access to

a neutral government program to any participant

with a viewpoint in favor of private—and particularly

religious—education. That court’s construction of

Article X, which affects speech relating to private or

religious

education,

content-based

and

presumptively invalid under the First Amendment.

See R.A.V., 505 U.S. at 382; Simon & Schuster, Inc. v.

Members of N.Y. State Crime Victims Bd., 502 U.S.

105, 115, (1991). That express content- and viewpointbased restriction is “subject to strict scrutiny

regardless of the government’s benign motive,

content-neutral justification, or lack of animus toward

the ideas contained’ in the regulated speech.” Reed v

Town of Gilbert, 135 S. Ct. 2218, 2228 (2015) (citation

omitted).

This

Court

reviewed

similar

viewpoint

discrimination in Rosenberger v. Rector & Visitors of

University of Virginia, 515 U.S. 819 (1995), and found

that it violated the Free Speech Clause of the First

Amendment. In Rosenberger, the University of

Virginia had a program that authorized payments

from the Student Activities Fund to outside

contractors for costs incurred by qualified student

organizations. The purpose of the fund was to support

a broad range of extracurricular activities and its

funding was derived from student fees—not from the

state. Id. at 822, 824. Student news organizations

were among the categories of student groups that

could seek payments. Id. at 824. The university

denied reimbursement of printing costs for one

publication—a magazine that addressed personal and

community issues from a Christian perspective—on

the basis that publishing the magazine was a religious

activity. Id. at 825, 826. Although the university

defended its position on Establishment grounds, this

Court held that the university’s requirement that

student publications be scanned and interpreted to

discern their religious philosophy violated the First

Amendment. Id. at 845. The Court added that the

university’s course of action “would risk fostering a

pervasive bias or hostility to religion, which could

undermine the very neutrality the Establishment

Clause requires.” Id. at 845–46.

So too here. The Montana Legislature enacted a

program that authorized payments from independent

third-parties to qualified education providers to

support a broad range of school choice using non-state

funds. There is no dispute that the participating

students are entitled to attend school in Montana nor

that the schools they wish to attend are qualified

under state law. The only basis on which the Montana

Supreme Court denied the program was the inability

of the State to discern the religious philosophy of the

recipient schools for the express purpose of rooting out

religious participants. This, as the Court noted in

Rosenberger, would undermine the neutrality the

Establishment Clause requires.

It is also viewpoint discrimination. Like the

publication in Rosenberger, some participating schools

in the Montana tax-credit program may present

educational topics from a religious perspective.

Others may present educational topics from a secular

viewpoint, but one that is distinct from the viewpoint

expressed in the public schools. Students enrolled in

those schools may wish to hear educational material

presented from a religious, or from a specialized

secular, perspective. As listeners, the students have

an equal free speech interest in the viewpoint of the

schools they choose to attend. Va. State Bd. of

Pharmacy v. Va. Citizens Consumer Council, Inc., 425

U.S. 748, 757 (1976) (“freedom of speech ‘necessarily

protects the right to receive’”). To burden the speech

of religious or other private schools because they may

extoll a viewpoint different from the public schools,

violates the rights of the educators to speak and the

students to listen.

Moreover, the Montana Supreme Court’s fear of

religious viewpoints is especially pernicious here

because it has precluded participation in the taxcredit program for all speakers due to the fear that

non-religious speakers could not be singled out. While

there was no arguable cause for overturning the

legislature’s decision to extend tax credits for

contributions to secular private schools, they were

excluded too in a zealous attempt to exclude the

participation of schools with a religious viewpoint.

This is Not a Case of Government