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

No. 18-1195

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In The

Supreme Court of the United States

-----------------------------------------------------------------KENDRA ESPINOZA, et al.,

Petitioners,

v.

MONTANA DEPARTMENT OF REVENUE, et al.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The Montana Supreme Court

-----------------------------------------------------------------BRIEF OF CHRISTIAN LEGAL SOCIETY,

UNITED STATES CONFERENCE OF CATHOLIC

BISHOPS, THE UNION OF ORTHODOX JEWISH

CONGREGATIONS OF AMERICA, AMERICAN

ASSOCIATION OF CHRISTIAN SCHOOLS,

THE ANGLICAN CHURCH IN NORTH AMERICA,

ASSOCIATION OF CHRISTIAN SCHOOLS

INTERNATIONAL, THE CHURCH OF JESUS CHRIST

OF LATTER-DAY SAINTS, COUNCIL FOR AMERICAN

PRIVATE EDUCATION, COUNCIL FOR CHRISTIAN

COLLEGES & UNIVERSITIES, ETHICS &

RELIGIOUS LIBERTY COMMISSION, EVANGELICAL

COUNCIL FOR FINANCIAL ACCOUNTABILITY,

THE GENERAL CONFERENCE OF SEVENTH-DAY

ADVENTISTS, INSTITUTIONAL RELIGIOUS

FREEDOM ALLIANCE, THE LUTHERAN CHURCH –

MISSOURI SYNOD, NATIONAL ASSOCIATION OF

EVANGELICALS, QUEENS FEDERATION OF

CHURCHES, AND WORLD VISION, INC. (U.S.) AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------KIMBERLEE WOOD COLBY

DOUGLAS LAYCOCK

727 E. Dean Keeton St.

Counsel of Record

Austin, TX 78705

REED N. SMITH

(512) 232-1224

CENTER FOR LAW AND

RELIGIOUS FREEDOM

dlaycock@law.virginia.edu

HRISTIAN

LEGAL SOCIETY

C

THOMAS C. BERG

8001

Braddock

Rd., Suite 302

MSL 400, 1000 LaSalle Ave.

Springfield,

VA

22151

Minneapolis, MN 55403

(703)

894-1087

(651) 962-4918

kcolby@clsnet.org

tcberg@stthomas.edu

Counsel for Amici Curiae

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Does it violate the First Amendment’s Free Exercise Clause to invalidate a generally available and religiously neutral student-aid program simply because

the program affords students the choice of attending

religious schools and on the basis of a state-law provision that singles out religious schools for adverse treatment?

ii

TABLE OF CONTENTS

Page

Question Presented .............................................

i

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

iv

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

1

Introduction and Summary of Argument ............

1

Argument .............................................................

6

I.

II.

The Montana Supreme Court Relied on a

Constitutional Provision That Singles Out

Religion to Deny Otherwise Available Educational Benefits That Would Assist Families ..............................................................

6

Denial of Neutrally Available Benefits Violates the Free Exercise Clause Not Only

When Singling Out Religious “Status” or

“Identity,” but Also When Singling Out Religious Uses of Such Benefits ....................

8

A. Discrimination Against Religious Uses

Conflicts with the Text of the Free Exercise Clause ........................................

9

B. Discrimination Against Religious Uses

Conflicts with This Court’s Free Exercise Clause Decisions ............................ 10

C. The Status-Use Distinction Collapses

in the Context of Religiously Grounded

Schools, Because They Offer Education

of Secular Value While Incorporating

Their Religious Identity ....................... 14

iii

TABLE OF CONTENTS—Continued

Page

D. Locke v. Davey Does Not Support Broad

Discrimination Against Religious Uses

of Benefits ............................................ 16

III.

Discrimination Against Religious Choices

in Generally Available Student-Aid Programs Violates the Fundamental Principles of the Religion Clauses: Government

Neutrality and Private Choice in Matters

of Religion .................................................. 19

A. The Religion Clauses Protect Private

Religious Choice and Require Government Neutrality Toward Religious Activity .................................................... 19

1. Equal government aid to religious

and secular schools is both formally

and substantively neutral .............. 21

2. These principles also explain other

categories of cases under the Religion Clauses .................................... 24

B. Denying Tax Credits for Educational

Contributions Because Religious Schools

Might Benefit Is a Clear Violation of Religious Neutrality and Choice................. 29

Conclusion............................................................ 35

APPENDIX

Individual Statements of Interest ........................... A-1

iv

TABLE OF AUTHORITIES

Page

CASES

Abington Sch. Dist. v. Schempp,

374 U.S. 203 (1963) .................................................21

Agostini v. Felton,

521 U.S. 203 (1997) .................................................34

American Legion v. American

Humanist Association,

139 S. Ct. 2067 (2019) .............................................28

Arizona Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) .................................................31

Armstrong v. Exceptional Child Ctr., Inc.,

135 S. Ct. 1378 (2015) ...............................................7

Cantwell v. Connecticut,

310 U.S. 296 (1940) ...................................................9

Chicago I. & L.R. Co. v. Hackett,

228 U.S. 559 (1913) ...................................................8

Church of Lukumi Babalu Aye v. Hialeah,

508 U.S. 520 (1993) ...................................................6

Colorado Christian College v. Weaver,

534 F.3d 1245 (10th Cir. 2008) ................................18

Corporation of Presiding Bishop v. Amos,

483 U.S. 327 (1987) .................................................25

Employment Division v. Smith,

494 U.S. 872 (1990) ..................................... 10, 26, 27

Griffith v. Bower,

747 N.E.2d 423 (Ill. App. 5th Dist. 2001) ...............29

v

TABLE OF AUTHORITIES—Continued

Page

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) .................................................26

Hunter v. Underwood,

471 U.S. 222 (1985) ...................................................7

Kennedy v. Bremerton Sch. Dist.,

139 S. Ct. 634 (2019) ...............................................27

Lee v. Weisman,

505 U.S. 577 (1992) .................................................27

Locke v. Davey,

540 U.S. 712 (2004) ................................. 4, 16, 17, 18

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .....................................8

McDaniel v. Paty,

435 U.S. 618 (1978) ......................................... passim

Mitchell v. Helms,

530 U.S. 793 (2000) ........................................... 15, 24

Morris County Bd. of Chosen Freeholders v.

Freedom from Religion Found.,

139 S. Ct. 909 (2019) ...............................................23

Mueller v. Allen,

463 U.S. 388 (1983) ..................................... 22, 30, 33

Sherbert v. Verner,

374 U.S. 398 (1963) ..................................... 10, 11, 26

Thomas v. Review Bd.,

450 U.S. 707 (1981) ..................................... 10, 11, 25

vi

TABLE OF AUTHORITIES—Continued

Page

Trinity Lutheran Church v. Comer,

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

Widmar v. Vincent,

454 U.S. 263 (1981) ............................................. 7, 33

Winn v. Arizona Christian Sch. Tuition Org.,

586 F.3d 649 (9th Cir. 2009), rev’d, 563 U.S.

125 (2011) ................................................................32

Witters v. Dept. of Services,

474 U.S. 481 (1986) ........................................... 22, 29

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ............................... 22, 29, 33, 34

Zobrest v. Catalina Foothills School Dist.,

509 U.S. 1 (1993) .....................................................22

Zorach v. Clauson,

343 U.S. 306 (1952) ..................................... 21, 22, 34

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. Amend. I ...................................................21

Mont. Const. art. X, § 6 ......................................... 2, 6, 8

Mont. Code Ann. § 15-30-3102(7)(f ) ...........................14

Mont. Code Ann. § 15-30-3103(b) ...............................29

Mont. Code Ann. § 15-30-3110 ...................................34

Mont. Code Ann. § 20-5-109(4) ...................................14

vii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Brief for Amici Curiae Religious Denominations

and Other Religious Institutions Supporting

Petitioners, American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019)

(Nos. 17-1717 & 18-18)............................................28

Brief of Baptist Joint Committee, et al., as Amici

Curiae in Support of Respondents, American

Legion v. American Humanist Association,

139 S. Ct. 2067 (2019) (Nos. 17-1717 & 18-18) ......28

Thomas C. Berg, Vouchers and Religious Schools:

The New Constitutional Questions, 72 U. Cin. L.

Rev. 151 (2003) ........................................................16

Thomas C. Berg and Douglas Laycock, The Mistakes in Locke v. Davey and the Future of State

Payments for Services Provided by Religious

Institutions, 40 U. Tulsa L. Rev. 227 (2004)...... 17, 19

Douglas Laycock, Comment: Churches, Playgrounds, Government Dollars—And Schools?,

131 Harv. L. Rev. 133 (2017) ............................. 14, 15

Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39

DePaul L. Rev. 993 (1990) .......................................20

Douglas Laycock, Theology Scholarships, the

Pledge of Allegiance, and Religious Liberty:

Avoiding the Extremes But Missing the Liberty, 118 Harv. L. Rev. 155 (2004) ...........................23

viii

TABLE OF AUTHORITIES—Continued

Page

Michael W. McConnell, The Selective Funding

Problem: Abortions and Religious Schools, 104

Harv. L. Rev. 989 (1991) ..........................................15

Petition for Certiorari, Fulton v. City of Philadelphia, No. 19-123 (docketed July 25, 2019).........27

Petition for Certiorari, Ricks v. Idaho Contractors Bd., No. 19-66 (docketed July 12, 2019) ..........27

1

INTEREST OF AMICI CURIAE1

Amici curiae are religious and civil liberties organizations who all endorse a vital principle: that the First

Amendment’s Religion Clauses are meant to protect

the choices of private individuals and organizations in

religious matters by preserving government neutrality

toward those choices. Some amici operate or support

private religious schools that families choose for their

children. All amici agree that families that use private

schools should not suffer government discrimination

because their choice of school is religious—and that the

decision below unconstitutionally gives effect to a state

provision that discriminates against religion.

The specific interests of amici are detailed in the

Appendix to this brief.

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

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Montana Supreme Court invalidated a religionneutral tax credit for donations to organizations supporting students in private schools (student scholarship

organizations, or “SSOs”) solely because some donations would benefit students whose families choose religiously affiliated schools. The court invalidated the

1

No counsel for a party authored this brief in whole or in

part, and no person or entity other than amici, their members,

and their counsel made a monetary contribution to the preparation or submission of this brief. Blanket consent letters are on file

with the Clerk.

2

program under the state constitutional provision, Article X, § 6(1), that prohibits any “direct or indirect appropriation or payment” of public funds “to aid any

church, school,” or other institution “controlled in

whole or part by any church, sect, or denomination.”

The court thus relied on a provision singling out religious schools for exclusion from a neutral program of

government benefits. By depriving petitioners of access

to benefits on this basis, the ruling below violates the

First Amendment’s Free Exercise Clause.

I. This Court has held—consistent with its

longstanding prohibition on discrimination against religion—that government violates the Free Exercise

Clause when it “den[ies] a generally available benefit

solely on account of religious identity” or status. Trinity Lutheran Church v. Comer, 137 S. Ct. 2012, 2019

(2017) (holding that state could not declare an organization ineligible for a playground-resurfacing grant on

the ground that it was a church). Here, likewise, the

Montana Supreme Court invalidated the tax-credit

program “solely on” a discriminatory ground: that

some families receiving scholarships would use the

scholarships to send their children to religious schools.

It is irrelevant that, as a matter of remedy, the

court struck down the entire program (Pet. App. 32-34).

The court relied on a legal rule that singles out religious activity for exclusion from a state benefit, and it

gave effect to that rule to deny the benefits. Because

the state court based its authority to act on an unconstitutional ground of decision, this Court should

3

reverse and remand for the court below to proceed only

on grounds consistent with the federal Constitution.

II. Trinity Lutheran forbade discrimination

based on religious status, reserving the question

whether the state might discriminate against claimants who would use the benefit for activities that

included religious teaching. But a “status-use” distinction cannot be the proper constitutional line for discrimination against religion in student-aid programs.

The status-use distinction conflicts with the Free Exercise Clause’s text and this Court’s jurisprudence,

both of which protect the right not just to have a religious identity but to act on it—here, by including religious teaching in the education that a school provides

and a family chooses.

Moreover, the status-use distinction collapses in

the context of benefits for religiously grounded K-12

education. Religious schools teach the same secular

subjects as other schools; in providing benefits assisting the teaching of these subjects, the state cannot discriminate on the basis that some of the schools also

teach religion. To bar religious schools from an education-benefits program is to bar them because they

teach religion as well: that is, to bar them because of

their religious status or identity. Moreover, schools

that go beyond mere religious affiliation to integrate

religion into their secular subjects—and families who

use those schools—do so because their religious identity permeates education. Whether called “belief or status” or “use,” “[i]t is free exercise either way” (Trinity

Lutheran, 137 S. Ct. at 2026 (Gorsuch, J., concurring in

4

part)), and the state presumptively cannot discriminate against it.

Finally, this Court’s decision in Locke v. Davey, 540

U.S. 712 (2004), provides no basis for giving government substantial room to discriminate against religious uses of a benefit. Locke allowed a denial of

benefits to students majoring in devotional theology, a

“distinct category of instruction” compared with the

range of other subjects, and it noted that the state permitted students receiving benefits to attend religious

schools and take religious courses. Id. at 721, 724-25.

That narrow ruling is essentially limited to aid supporting the training of clergy. It provides no warrant

for state rules, like the one applied below, that discriminatorily bar beneficiaries from any use of their benefit

at religious schools, including use for the secular education the schools provide.

III. A. In addition, discrimination against religious uses of general benefits presumptively offends

basic principles underlying the Free Exercise Clause

and the First Amendment’s Religion Clauses as a

whole—government neutrality toward religion and

protection of private choice in matters of religion (“voluntarism”). In the context of government benefits

available in both religious and nonreligious settings,

all the basic constitutional principles point in the same

direction: forbidding government from favoring either

religious choices or secular choices. In this case, neutrality toward religion in the “formal” sense (giving aid

on a religion-blind basis, i.e., without religious classifications) also embodies voluntarism and neutrality in

5

the “substantive” sense (that is, creating neutral incentives that neither discourage nor encourage individuals’ religious choices).

B. Tax credits for contributions to SSOs provide

a clear case for requiring government neutrality toward private religious choices. Under the decision below, the choice by some families to use their benefits—

state-encouraged scholarships—at religious schools

entirely deprives them of the benefits. Invalidating the

program because it includes religious schools also penalizes those taxpayers who donate to enable families

to choose religious schools. And when a private-choice

program is administered through tax credits, the element of choice increases and the flimsy connection between government and religion becomes even flimsier.

Taxpayers choose whether or not to contribute to an

SSO and claim a credit, and the government, by declining to impose a tax, does not force dissenting taxpayers

to contribute to whatever religious uses beneficiaries

of the program choose to make. To invalidate such a

program of private choice based on a rule discriminating against religion violates free exercise.

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

6

ARGUMENT

I.

The Montana Supreme Court Relied on a

Constitutional Provision That Singles Out

Religion to Deny Otherwise Available Educational Benefits That Would Assist Families.

The Montana program involved here is neutral toward religion: it gives a tax credit for any taxpayer who

donates to an SSO, and any family may seek scholarships from SSOs to attend either secular or religious

private schools. The Montana Supreme Court invalidated the program solely on the basis of the state constitution’s Article X, § 6, which prohibits any “direct or

indirect appropriation or payment” of public funds “to

aid any church, school,” or other institution “controlled

in whole or part by any church, sect, or denomination.”

The constitutional violation, according to the court,

was that the program “aids sectarian schools.” Pet.

App. 17; see id. at 28 (“The Legislature violates Article

X, Section 6’s prohibition on aid to sectarian schools

when it provides any aid [to such schools], no matter

how small.”). The court’s legal rule thus singles out religious schools, and the families using them, for exclusion from generally available government benefits.

Such discrimination against religion is presumptively unconstitutional. “The Free Exercise Clause

‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that

target the religious for ‘special disabilities’ based on

their religious status.” Trinity Lutheran Church v.

Comer, 137 S. Ct. 2012, 2019 (2017) (quoting Church of

Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 533, 542

7

(1993)) (modifications by the Court). Thus the government violates the Free Exercise Clause when it

“den[ies] a generally available benefit solely on account of [the claimant’s] religious identity” or status.

Trinity Lutheran, 137 S. Ct. at 2019 (holding that state

could not declare an organization ineligible for a grant

supporting playground resurfacing on the ground that

it was a church). Indeed, a rule excluding religious

schools and children attending them from “ ‘the benefits common to the rest of [their] fellow-citizens’ ” is

“odious to our Constitution.” Id. at 2024-25 (quotation

omitted).

It is irrelevant that the Montana Supreme Court

ultimately invalidated the SSO tax-credit program

entirely. The court acted solely on the authority of

a state constitutional provision that discriminates

against religion on its face. The court struck down the

program because religious schools would benefit from

it, not because private schools would benefit generally.

Under the Supremacy Clause, courts “must not give effect to state laws that conflict with federal laws.” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378,

1383 (2015). That includes state constitutional provisions that conflict with the Free Exercise Clause or

other federal constitutional rights. See Trinity Lutheran, 137 S. Ct. at 2023 (asserted state constitutional interest in discrimination “ ‘is limited by the

Free Exercise Clause’ ”) (quoting Widmar v. Vincent,

454 U.S. 263, 276 (1981)); see also Hunter v. Underwood, 471 U.S. 222 (1985) (invalidating a provision of

the Alabama constitution). Under judicial review, a

8

court must “disregar[d]” an unconstitutional provision,

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803);

such a provision is “inoperative” and cannot “supersede

any existing valid law.” Chicago, I. & L.R. Co. v. Hackett, 228 U.S. 559, 566 (1913). By striking down the taxcredit program, the court below “g[a]ve effect” to the

discriminatory state constitutional rule instead of “disregard[ing]” it.

A state generally has no obligation to enact a program of benefits for private education in the first place.

But once the legislature has enacted such a program,

a court cannot invalidate it by giving operative legal

effect to a state provision that unconstitutionally discriminates against religion. Courts have power to act

only on the basis of valid legal provisions and rules.

The rest of this brief therefore addresses why Article X, § 6, is unconstitutional as applied in this case.

Because that application of the provision is unconstitutional, the state court’s decision based on it cannot

stand. Accordingly, this Court should reverse and remand for the court below to proceed only on grounds

consistent with the U.S. Constitution.

II.

Denial of Neutrally Available Benefits Violates the Free Exercise Clause Not Only

When Singling Out Religious “Status” or

“Identity,” but Also When Singling Out Religious Uses of Such Benefits.

Trinity Lutheran forbade discrimination on the

ground of claimants’ religious “status” or “identity.” 137

9

S. Ct. at 2019. It reserved the question whether the

state could discriminate on the ground that claimants

would use the benefit for activities involving religious

teaching. Id. at 2024 n.3. But a “status-use” distinction

cannot be the proper constitutional line concerning

discrimination against religion in student-aid programs. That distinction conflicts with the text of the

Free Exercise Clause and decisions of this Court, and

it collapses in the context of benefits to religiously

grounded education.

A. Discrimination Against Religious Uses

Conflicts with the Text of the Free Exercise Clause.

First, the constitutional text offers no basis for distinguishing a beneficiary’s religious affiliation from its

use of benefits. It is difficult to “see why the First

Amendment’s Free Exercise Clause should care” about

a “status-use” distinction when “that Clause guarantees the free exercise of religion, not just the right to

inward belief (or status).” Trinity Lutheran, 137 S. Ct.

at 2026 (Gorsuch, J., concurring in part) (emphasis in

original). The clause encompasses “two concepts,—

freedom to believe and freedom to act.” Cantwell v.

Connecticut, 310 U.S. 296, 303 (1940). “[T]he ‘exercise

of religion’ often involves not only belief and profession

but the performance of (or abstention from) physical

acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain

10

modes of transportation.” Employment Division v.

Smith, 494 U.S. 872, 877 (1990).

The “exercise of religion” covers not just having a

religious identity but also living out that religious

identity, including giving or receiving religious instruction in educational institutions. The constitutional

text simply cannot support forbidding discrimination

against religious affiliation but allowing discrimination against religious teachings and activities.

B. Discrimination Against Religious Uses

Conflicts with This Court’s Free Exercise Clause Decisions.

When citizens “use” a government benefit to support religiously grounded schools or help their children

attend them, they engage in religious actions. This

Court’s Free Exercise Clause decisions forbid discrimination and non-neutrality not only against religious

affiliation but also against those who live out their religious identity in actions. See, e.g., Lukumi, 508 U.S.

520; Thomas v. Review Board, 450 U.S. 707 (1981);

McDaniel v. Paty, 435 U.S. 618 (1978); Sherbert v. Verner, 374 U.S. 398 (1963).2

2

This Court has reaffirmed Sherbert and Thomas on the

ground that when a state’s unemployment-benefits law recognizes certain reasons as “good cause” for declining available work,

the state’s refusal to accept a religiously based reason is nonneutral toward religious exercise. Employment Division v. Smith,

494 U.S. 872, 884 (1990).

11

In Sherbert, for example, South Carolina denied

unemployment benefits to a woman who had been discharged from her job and refused to accept a different

job in which she would be required to work on Saturday, her Sabbath. The state did not penalize Adele

Sherbert because she was a Seventh-day Adventist; it

penalized her because she acted in accordance with

that identity and status. Sherbert, 374 U.S. at 404. This

Court still found the denial of benefits unconstitutional.

Likewise, in Thomas, the Court held unconstitutional the state’s denial of unemployment benefits to a

Jehovah’s Witness who had resigned his job rather

than produce armaments in violation of his beliefs. The

state did not penalize Eddie Thomas for being a Jehovah’s Witness; it penalized him for acting on that identity. The government violates free exercise if, absent a

compelling reason, it “conditions receipt of an important benefit upon conduct proscribed by a religious

faith, or ... denies such a benefit because of conduct

mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior

and to violate his beliefs.” Thomas, 450 U.S. at 717-18

(emphases added).

Moreover, McDaniel v. Paty—which is sometimes

cited as an example of this Court invalidating discrimination based on “status” (see Trinity Lutheran, 137

S. Ct. at 2020)—actually reflects a broader rule.

McDaniel struck down a state constitutional provision

barring clergy from serving in the state legislature or

a state constitutional convention. The plurality held

12

that the state had placed an unconstitutional disability on McDaniel—ineligibility for office—because of his

“status as a ‘minister.’ ” 435 U.S. at 627. But it immediately noted that Tennessee defined ministerial status

“in terms of conduct and activity.” Id. Tennessee’s interest in disestablishment could not justify discriminating against this religious activity. Id. at 627-29.

As Justice Brennan noted in his influential

concurring opinion, the state had actually asserted a

distinction between mere religious affiliation and

something more: the state court had defended the disqualification because it rested “not [on] religious belief,

but [on] the career or calling, by which one is identified

as dedicated to the full time promotion of the religious

objectives of a particular religious sect.” Id. at 630

(Brennan, J., concurring in the judgment) (brackets

added, internal quotation marks omitted).

Justice Brennan rejected that distinction for reasons that are highly relevant here:

Clearly, freedom of belief protected by the

Free Exercise Clause embraces freedom to

profess or practice that belief, even including

doing so to earn a livelihood. One’s religious

belief surely does not cease to enjoy the protection of the First Amendment when held

with such depth of sincerity as to impel one to

join the ministry.

Id. at 631. McDaniel thus illustrates that the state may

not discriminate against a person’s religious practice

13

on the ground that the person pursues it seriously or

pervasively. Justice Brennan continued (id. at 632):

The provision imposes a unique disability

upon those who exhibit a defined level of intensity of involvement in protected religious

activity. Such a classification as much imposes

a test for office based on religious conviction

as one based on denominational preference. A

law which limits political participation to

those who eschew prayer, public worship, or

the ministry as much establishes a religious

test as one which disqualifies Catholics, or

Jews, or Protestants.

McDaniel likewise condemns placing a “unique

disability” upon religious uses of a neutral educational

benefit. Forbidding religious uses of such aid discriminates against those families and schools whose “intensity” of religious practice calls for integrating religion

into the educational process. Such discrimination imposes a bar as much “based on religious conviction as

one based on denominational preference” or religious

affiliation. Id. at 632. The Free Exercise Clause forbids

discrimination against schools (and their students) not

only when it rests on mere religious affiliation, but also

when it rests on the act of integrating religious content

into teaching.

14

C. The Status-Use Distinction Collapses

in the Context of Religiously Grounded

Schools, Because They Offer Education

of Secular Value While Incorporating

Their Religious Identity.

The distinction between religious status and religious use of funds, if ever valid, collapses in the context

of instruction in religious schools. See Trinity Lutheran, 137 S. Ct. at 2025-26 (Gorsuch, J., concurring

in part) (arguing that the distinction is unstable). It

collapses for two related but independent reasons.

1. First, religious schools typically provide instruction in the familiar range of subjects—English,

history, math, science—while also teaching a religion

class or conducting chapel services or, in some cases,

integrating relevant religious perspectives and teachings into the secular subjects. The religious elements

could be characterized as religious “uses.” But simultaneously, religious schools “teach the full secular curriculum and satisfy the compulsory education laws.”

Douglas Laycock, Comment: Churches, Playgrounds,

Government Dollars—And Schools?, 131 Harv. L. Rev.

133, 162 (2017). Schools participating in the Montana

program must satisfy the compulsory enrollment law

and must teach basic subjects required in the public

schools. Mont. Code Ann. § 15-30-3102(7)(f ); id. § 20-5109(4).

Since religious schools teach the same subjects as

other schools, to bar them from an education-benefits

program is to bar them because they additionally

15

provide religious instruction. “If we consider that

[state aid] is funding the secular curriculum, [the

schools are] excluded because of who and what they

are—exactly what Trinity Lutheran says is unconstitutional.” Laycock, supra, 131 Harv. L. Rev. at 162.3

2. There is a second way in which the status-use

distinction collapses with respect to religious schools.

As already discussed, the exclusion of religious uses of

educational benefits targets religious schools that incorporate faith into their secular instruction: those

that perceive most or all aspects of life from a religious

lens. See pp. 11-12 supra. But these schools’ religious

identity is defined by such teaching. Denying benefits

to the schools (and the students who attend them)

simply because they incorporate such teaching imposes

a penalty on “those who take their religion seriously,

who think that their religion should affect the whole of

their lives.” Mitchell v. Helms, 530 U.S. 793, 827-28 (2000)

(plurality opinion of Thomas, J., for four justices).

“[M]any of those who choose religious schools believe that secular knowledge cannot be rigidly separated from the religious without gravely distorting the

child’s education.... From this perspective, it is not sufficient to introduce religious education on the side.” Michael W. McConnell, The Selective Funding Problem:

Abortions and Religious Schools, 104 Harv. L. Rev. 989,

3

The state here clearly receives full secular educational

value for the aid that is ultimately used at religious schools.

Whether or not one could ever argue that the state is not receiving

full value from its aid, no such argument is possible here, where

the tax credit is capped at $150 annually.

16

1017-18 (1991). To allow aid to religious schools but not

to their religiously grounded teaching “singles out

those religions that cannot accept such ‘bracketing’ of

religious teaching, and penalizes them by denying

them the entire state educational benefit.” Thomas C.

Berg, Vouchers and Religious Schools: The New Constitutional Questions, 72 U. Cin. L. Rev. 151, 177 (2003).

It imposes a “unique disability upon those who exhibit

a defined level of intensity of involvement in protected

religious activity.” McDaniel, 435 U.S. at 632 (Brennan,

J., concurring in the judgment).

Thus, the context of religious schooling validates

Justice Gorsuch’s prediction that the distinction between status and use cannot remain stable. “[T]he

same facts can be described both ways.” Trinity Lutheran, 137 S. Ct. at 2026 (Gorsuch, J., concurring in

part). It is untenable to prohibit a state from discriminating against schools because they are religious but

allow it to discriminate against schools because they

add religious instruction to secular instruction. Accordingly, whatever “play in the joints” exists between

the Religion Clauses (Trinity Lutheran, 137 S. Ct. at

2019), a status-use distinction cannot define the extent

of that play.

D. Locke v. Davey Does Not Support Broad

Discrimination Against Religious Uses

of Benefits.

Finally, the Montana Supreme Court erred in suggesting that its rule singling out religious uses of aid

17

for prohibition was justified by this Court’s decision in

Locke v. Davey, 540 U.S. 712 (2004). See Pet. App. 16.

Locke permitted the state of Washington to exclude a

student from a generally available scholarship because

he was majoring in “devotional theology.” But Locke is

a narrow decision that does not give the government

license to discriminate against religious uses of a benefit. See Trinity Lutheran, 137 S. Ct. at 2022-24 (reading Locke narrowly based on factors similar to those

discussed here).

First, the exclusion permitted in Locke aimed to

prevent government support of clergy training—a goal

that the Court said reflects a “historic and substantial

state interest” dating back to “the founding of our country.” 540 U.S. at 725, 722. By contrast, for reasons described infra (pp. 26-32), government benefits such as

the tax credits here have little connection to the ultimate religious uses; thus any anti-establishment interests are neither historic nor substantial.

Second and relatedly, the Court believed that a

post-secondary theology degree—“training for a religious profession”—is a “distinct category of instruction,”

not “fungible” with “training for secular professions.”

Locke, 540 U.S. at 721. By contrast, most religious colleges and K-12 schools involved in student-aid cases

“pursue not only religious instruction but also secular

education. They train students for the same secular

professions and careers that secular schools do.”

Thomas C. Berg and Douglas Laycock, The Mistakes in

Locke v. Davey and the Future of State Payments for

Services Provided by Religious Institutions, 40 U. Tulsa

18

L. Rev. 227, 248 (2004). Thus “excluding them excludes

instruction that falls within the same category as secular schools”—“a pure case of discrimination against

an activity solely because of its religious motivation or

viewpoint.” Id.

Third, Locke emphasizes that, even with the theology-degree exclusion, the Washington program went

“a long way toward including religion in its benefits.”

540 U.S. at 724. Joshua Davey could use his state scholarship to attend a pervasively religious college (so long

as it was accredited) and take courses in religion, including “devotional theology courses,” or courses that

integrated religion into secular subjects; he suffered

only the relatively “minor burden” of not being able to

major in theology. Id. at 724-25. Unlike the state law

in Locke, the Montana Supreme Court’s rule excludes

all of a religious school’s instruction from scholarship

programs encouraged by a tax credit.

As amici discuss in Part III infra, the degree of

burden that an exclusion of religious schooling places

on religious choice informs whether that exclusion violates the Free Exercise Clause. Thus, as Judge Michael McConnell observed, Locke “implies that major

burdens and categorical exclusions from public benefits might not be permitted in service of lesser or less

long-established governmental ends.” Colorado Christian College v. Weaver, 534 F.3d 1245, 1256 (10th Cir.

2008). Locke does not broadly immunize states’ denial

of benefits based on religious uses of funds.

19

III. Discrimination Against Religious Choices

in Generally Available Student-Aid Programs Violates the Fundamental Principles of the Religion Clauses: Government

Neutrality and Private Choice in Matters

of Religion.

As explained above, the distinction between “status” and “use” cannot justify discrimination against

the religious activity of either individuals or religious

schools. The constitutional prohibition of discrimination against religious uses is an application of larger

principles underlying the Religion Clauses. Those central principles include government neutrality toward

religion and protection of private choice in matters of

religion. When a tax-credit program benefits religious

and nonreligious schools on neutral terms, a legal rule

excluding religious beneficiaries violates these core

principles.

A. The Religion Clauses Protect Private

Religious Choice and Require Government Neutrality Toward Religious Activity.

“The ultimate goal of the Constitution’s provisions

on religion is religious liberty for all—for believer and

nonbeliever, for Christian and Jew, for Protestant and

Catholic, for Western traditions and Eastern, for large

faiths and small, for atheist and agnostic, for secular

humanist and the religiously indifferent, for every individual human being in the vast mosaic that makes

up the American people.” Berg and Laycock, supra, 40

20

Tulsa L. Rev. at 232. The ultimate goal is that every

American should be free to hold his or her own views

on religious questions, and live the life that those views

direct, with a minimum of government interference or

influence. The fundamental principle to achieve that

goal is government neutrality toward religion in the

“substantive” sense.

[S]ubstantive neutrality [means] this: the

religion clauses require government to minimize the extent to which it either encourages

or discourages religious belief or disbelief,

practice or nonpractice, observance or nonobservance.... [R]eligion [should] be left as

wholly to private choice as anything can be. It

should proceed as unaffected by government

as possible....

This elaboration highlights the connections among religious neutrality, religious

autonomy, and religious voluntarism. Government must be neutral so that religious belief

and practice can be free. The autonomy of religious belief and disbelief is maximized when

government encouragement and discouragement is minimized.

Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev.

993, 1001-02 (1990). Substantive neutrality requires

neutral government incentives with respect to religion.

It is distinct from “formal” neutrality, or religiously

neutral categories in government programs. Id. at 9991000. In some contexts, the two versions of neutrality

correspond with each other; eliminating religious

21

categories sometimes creates neutral incentives. But

when the two forms of neutrality diverge, substantive

neutrality—that is, voluntarism or religious choice—is

more fundamental.

Differently stated, the goal of the Religion Clauses

is that religion in America should flourish or decline

“according to the zeal of its adherents and the appeal

of its dogma.” Zorach v. Clauson, 343 U.S. 306, 313

(1952). This formulation restates the principles of voluntarism and private choice, as Justice Brennan summarized in McDaniel: “Fundamental to the conception

of religious liberty protected by the Religion Clauses is

the idea that religious beliefs are a matter of voluntary

choice by individuals and their associations, and that

each sect is entitled to ‘flourish according to the zeal of

its adherents and the appeal of its dogma.’ ” 435 U.S. at

640 (Brennan, J., concurring in the judgment) (quoting

Zorach; footnote omitted). See also Abington School

Dist. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg,

J., concurring) (“The basic purpose of the religion

clause of the First Amendment is to promote and assure the fullest possible scope of religious liberty and

tolerance for all and to nurture the conditions which

secure the best hope of attainment of that end.”).

1. Equal government aid to religious

and secular schools is both formally

and substantively neutral.

This Court has repeatedly ruled that neutral educational aid directed by private choice is consistent

22

with the Establishment Clause. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Zobrest v. Catalina

Foothills School Dist., 509 U.S. 1 (1993); Witters v. Dept.

of Services, 474 U.S. 481 (1986); Mueller v. Allen, 463

U.S. 388 (1983). These rulings directly reflect voluntarism and substantive-neutrality principles. In such

programs, “government aid reaches religious schools

only as a result of the genuine and independent choices

of private individuals.” Zelman, 536 U.S. at 649; accord

Witters, 474 U.S. at 488; Mueller, 463 U.S. at 399-400.

A program whose terms are “neutral with respect to

religion” creates no “financial incentive for parents to

choose a religious school” over a nonreligious one. Zelman, 536 U.S. at 652, 655; accord Witters, 474 U.S. at

487-88. Individuals use their benefit based on their

“zeal” for, or the “appeal” they find in, a particular

school’s education, ideology, or religious teaching. See

Zorach, 343 U.S. at 313.

Thus, in the context of a government benefits program involving private choice, the Religion Clauses’

core principles require that religious options be included equally with nonreligious options. Equal inclusion of religious options is “formally” neutral: it treats

religious and secular schools identically, without classifications or categories based on religion. It is also

“substantively” neutral: it neither discourages nor encourages individuals’ religious choices. Donors to SSOs

get the same $150 credit whether the SSO funds a religious school or a secular school, and families can benefit from SSO funds whichever school they choose.

“Financial aid can be distributed in a way consistent

23

with individual choice”: “[e]ach family receiving a government voucher can choose the school that it prefers

among all the options available,” and whatever that

range of options may be, “there are more choices with

the voucher than without it.” Douglas Laycock, Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes But Missing the

Liberty, 118 Harv. L. Rev. 155, 157 (2004).

The Court’s private-choice decisions hold that exclusion of religious choices is not required by the Establishment Clause, and they similarly show why such

exclusion presumptively violates the Free Exercise

Clause: the exclusion contravenes the fundamental

principles of neutrality and religious choice. Accordingly, most cases where a state singles out private religious choices for exclusion from generally available

benefits “should not be difficult”: such exclusion is invalid. Morris County Board of Chosen Freeholders v.

Freedom from Religion Foundation, 139 S. Ct. 909,

910-11 (2019) (statement of Kavanaugh, J., respecting

denial of certiorari). “Barring religious organizations

because they are religious from a general ... program

[of state benefits] is pure discrimination against religion.” Id. at 911. Singling out religion typically interferes with and distorts voluntary religious choice—

especially, regarding educational benefits, the choice of

families who wish to support religious schools or send

their children to them.4

4

In focusing on the fact that a particular program channels

aid through explicit choices by beneficiaries, we do not mean to

24

2. These principles also explain other

categories of cases under the Religion Clauses.

The principles of substantive neutrality and respecting religious choice also significantly underlie

this Court’s decisions in two other categories of cases

under the Religion Clauses: (1) protection of religious

exercise against burdens from generally applicable

laws and (2) religious speech by the government itself,

such as a government-sponsored prayer or symbolic religious display.

Religious exercise and generally applicable

laws. Principles of substantive neutrality and religious choice explain why government may—and sometimes must—accommodate religious exercise in the

face of generally applicable laws and regulations.

Applying a general law to a religiously motivated

practice may be formally neutral, if the law treats religious and secular violations alike. But if the law significantly burdens religious practice, it prevents people

from exercising voluntary religious choice and thus

suggest that this is a constitutional prerequisite for the inclusion

of religious providers. See Trinity Lutheran, 137 S. Ct. at 2023

(holding that state could not exclude institution from program of

direct aid solely because it was religious). Including religious providers in well designed and formally neutral direct-aid programs

is typically also substantively neutral and facilitates the choices

of the ultimate beneficiaries. See, e.g., Mitchell v. Helms, 530 U.S.

793, 810-14 (2000) (plurality opinion of Thomas, J., for four justices). The explicit element of family choice in programs like Montana’s simply makes it clear that they promote substantive

neutrality and choice.

25

lacks substantive neutrality. The threat of civil or criminal penalties or loss of government benefits profoundly discourages the prohibited religious practice.

Exempting the religious practice from regulation eliminates that discouragement, and it rarely encourages

the exempted practice. Nonbelievers will not suddenly

start observing the Sabbath, or traveling by horse-andbuggy, or holding their children out of high school just

because observant Jews or Adventists or Amish are

permitted to do so.

Formal and substantive neutrality both suggest

equal treatment of religious and secular schools with

respect to financial aid, because money has the same

value for everyone. But most exemptions of religious

practices have value only for believers in some particular faith. So even though an exemption is a form of

religious category, religious exemptions create neutral

religious incentives.

These principles explain why government clearly

may accommodate voluntary religious practice by exempting it from burdensome laws, even if such exemptions do not “come packaged with benefits to secular

entities.” Corporation of Presiding Bishop v. Amos, 483

U.S. 327, 338 (1987). Such an exemption is constitutional when it “does not have the effect of ‘inducing’ religious belief, but instead merely ‘accommodates’ or

implements an independent religious choice.” Thomas

v. Review Bd., 450 U.S. 707, 727 (1981) (Rehnquist, J.,

dissenting on other grounds). Exemption preserves

government “neutrality in the face of religious differences,” differences that the general law in question

26

does not take into account. Sherbert v. Verner, 374 U.S.

at 409.

Moreover, this Court has unanimously required

such exemptions when a generally applicable law “interferes with the internal governance of [a] church” or

other religious organization, “depriving the church of

control over the selection of those who will personify

its beliefs.” Hosanna-Tabor Evangelical Lutheran

Church & School v. EEOC, 565 U.S. 171, 188 (2012).

The “ministerial exception” to nondiscrimination suits,

affirmed in Hosanna-Tabor, protects religious choice:

“the interest of religious groups in choosing who will

preach their beliefs, teach their faith, and carry out

their mission.” Id. at 196 (“The church must be free to

choose those who will guide it on its way.”).

In cases not involving religious organizations’ internal governance, this Court’s decision in Smith, 494

U.S. 872, treats accommodation of religious choices as

frequently a matter of government discretion rather

than constitutional mandate. But that interpretation

of the Free Exercise Clause stems from worries about

judicial competence to decide when exemptions are

appropriate, not from a rejection of the importance of

religious choice. See id. at 890 (“to say that a nondiscriminatory religious-practice exemption is permitted,

or even that it is desirable, is not to say that ... the

appropriate occasions for its creation can be discerned

by the courts”). Whether or not these concerns

about the judicial role should override a constitutional

requirement of substantive neutrality, no such concerns are present here. A prohibition on religious

27

discrimination in funding programs requires no such

case-by-case judgments: discrimination toward religious choices in programs of student aid should be presumed unconstitutional.5

Government-sponsored religious speech. A final important category of cases applying the Religion

Clauses involves the constitutionality of governmentsponsored religious speech, such as prayers or symbolic displays, under the Establishment Clause. The

rules in this category are also shaped—even if not conclusively—by the principle of voluntarism, and by the

principle of neutrality in the sense that government is

limited in taking sides on disputed religious questions.

Voluntarism is clearly reflected in the basic Establishment Clause principle “that government may not coerce anyone to support or participate in religion or its

exercise.” Lee v. Weisman, 505 U.S. 577, 587 (1992) (rule

against coercion is “beyond dispute”).

Noncoercive exercises or displays are more

likely to be upheld, but even there the principle of

5

In any event, the meaning and vitality of Smith’s generalapplicability rule are currently matters of some uncertainty. See,

e.g., Petition for Certiorari, Fulton v. City of Philadelphia, No. 19123, at 18, 19-28 (docketed July 25, 2019) (documenting “deepening split among the Courts of Appeals over how plaintiffs prove

free exercise claims” under Smith’s rule); Kennedy v. Bremerton

School Dist., 139 S. Ct. 634, 637 (2019) (statement of Alito, J., for

four justices, respecting denial of certiorari) (noting that Smith

cut back on free exercise claims but that the Court “ha[d] not been

asked to revisit” Smith in that case); Petition for Certiorari, Ricks

v. Idaho Contractors Bd., No. 19-66 (docketed July 12, 2019) (presenting question “[w]hether the Court should revisit its holding

in [Smith]”).

28

government noninvolvement in religious disputes

plays a role. Most recently, this Court, in upholding a

95-year-old cross-shaped veterans’ memorial, rested on

its view that such “longstanding monuments, symbols,

and practices” tend to develop secular purposes and

meanings alongside their religious roots. American Legion v. American Humanist Association, 139 S. Ct.

2067, 2082-83 (2019). The majority carefully refrained

from suggesting that government could erect new displays today with the purpose of promoting its favored

religious view as against others. Id. at 2085 (“retaining

established” religious displays “is quite different from

erecting or adopting new ones”). Indeed, one reason the

Court gave for presuming the constitutionality of a

longstanding monument or practice is that when such

a feature develops “familiarity and historical significance, removing it may no longer appear neutral” but

rather may “strike many as aggressively hostile to religion.” Id. at 2084-85 (emphasis added).6 And the

Court indicated it would not approve monuments or

displays whose design “deliberately disrespected”

other faiths. Id. at 2089.

6

Some of the amici and counsel joining on this brief took opposing positions from each other in American Legion. Contrast

Brief for Amici Curiae Religious Denominations and Other Religious Institutions Supporting Petitioners; with Brief of Baptist

Joint Committee, et al., as Amici Curiae in Support of Respondents. But we agree here that the Constitution forbids giving effect

to a state rule that singles out religious educational choices for

discrimination.

29

B. Denying Tax Credits for Educational

Contributions Because Religious Schools

Might Benefit Is a Clear Violation of Religious Neutrality and Choice.

This case, of course, raises no issues concerning

religious accommodation or government religious

speech. Whatever precise rule should govern those categories of cases, the rule here should be clear. This case

exemplifies how discrimination against religion, violating formal neutrality, also constrains private religious choice, violating voluntarism and substantive

neutrality.

As enacted, the Montana program promotes the

private choice of families concerning religion in their

children’s education. It provides that SSOs shall give

scholarships to “eligible student[s] to enroll with any

qualified education provider of the parents’ or legal

guardian’s choice.” Mont. Code Ann. § 15-30-3103(b).

Because the program’s terms are neutral concerning

religion, they create no “financial incentive for parents

to choose a religious school” over a nonreligious one.

Zelman, 536 U.S. at 654; accord Witters, 474 U.S. at

487-88. Scholarships encouraged by the program are

ultimately used at a religious school “only by way of

the deliberate choices of numerous individual recipients.” Zelman, 536 U.S. at 652. See Griffith v. Bower,

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

similar tax-credit program, “[f ]unds become available

to schools only as the result of private choices made by

individual parents”).

30

But under the decision below, the fact that some

families choose to use scholarships encouraged by tax

credits at religious schools invalidates the credits. The

state constitutional provision discriminates against

families’ choice to use SSO funding at a religious

school, and the decision below applied that provision to

deprive the families of the assistance encouraged by

the tax credits.7 Invalidating the credits because they

could ultimately assist religious schools also penalizes

those taxpayers who donate to help other, needy families benefit from scholarships and who wish those families to be able to choose religious schools.8

7

As explained in Part I (pp. 7-8 supra), it is irrelevant that

the court expanded its remedy to invalidate the whole program.

The court acted solely on the authority of a provision discriminating against religious schools and families’ choices to use them,

and it gave effect to that discriminatory provision to deny the tax

credits that had encouraged SSO funding and thereby facilitated

families’ choices.

8

The state court asserted, without citation, that “[m]any” donors claiming credits “would be parents of children who attend”

qualifying schools and thus would be able “to claim [the] credit

instead of paying that amount of tuition to the [school].” Pet. App.

26. Of course, that situation would still involve true private

choice, as this Court ruled in upholding tax deductions claimed

directly by parents for tuition and other expenses at varying

schools including religious schools. Mueller v. Allen, 463 U.S. 388

(1983).

Moreover, the ruling below is not limited to situations where

donors also apply for scholarships. The court held that “[t]he tax

credit encourages the transfer of money from a taxpayer donor to

a sectarian school because the taxpayer donor knows she will be

reimbursed, dollar-for-dollar, for her donation to an SSO” and

“SSOs, in turn, directly fund tuition scholarships at religiouslyaffiliated [schools].” Pet. App. 25. That supposed violation exists

31

The nature of tax credits makes the element of private choice in the program even more dominant. Indeed, this Court held that with SSO tax-credit

programs, the supposed connection between government action and religious schools is so attenuated that

taxpayers lack standing to challenge such credits in

federal court. Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011).9 First, as the Court

observed, taxpayers choose whether to contribute to a

scholarship organization and claim a tax credit. See id.

at 143 (“contributions result from the decisions of private taxpayers regarding their own funds”). Moreover,

“[w]hile the State, at the outset, affords the opportunity to create and contribute to an STO,”10 that organization then directs money to the private school

based on the eligible family’s choice: thus “the tax

credit system is implemented by private action and

with no state intervention.” Id. at 143.

Winn also makes clear that the nature of a tax

credit greatly weakens a central argument asserted

in challenges to programs benefiting religious educational choices: that non-beneficiary taxpayers are

whether or not the donor also seeks a scholarship. Because the

program bars a donor from designating a specific family or school,

Mont. Code Ann. § 15-30-3111, parents who both donate and

claim a credit must do so separately. They pay into the SSO like

any donor, without receiving any guarantee of later obtaining a

scholarship.

9

The dissent in Winn disagreed with the Court’s holding of

no standing but did not claim that the program should fail on the

merits. See 563 U.S. at 147-48 (Kagan, J., dissenting).

10

“STO,” meaning “student tuition organization,” is the

equivalent term in Arizona to “SSO.”

32

being forced to subsidize religious teaching. See, e.g.,

Pet. App. 39 (Gustafson, J., concurring, for three justices) (asserting that the program forces nonqualifying

taxpayers to become “indirect and vicarious donors”)

(quotation omitted). But Winn points out that when

the government (through a credit) “declines to impose

a tax,” rather than imposing one, the dissenting taxpayer “has not been made to contribute” to whatever

religious uses occur. 563 U.S. at 142. As the Court said:

When Arizona taxpayers choose to contribute

to STOs, they spend their own money, not

money the State has collected from respondents or from other taxpayers. [The tax credit]

does not “extrac[t] and spen[d]” a conscientious dissenter’s funds.... On the contrary,

respondents and other Arizona taxpayers remain free to pay their own tax bills, without

contributing to an STO.

Id. Likewise, “[a]ny financial injury” to other taxpayers—the mere possibility that government would raise

their assessments to compensate for credits given to

donors—“remains speculative.” Id.

In short, a tax-credit program separates government action from religious schools by “multiple layers

of private, individual choice.” Winn v. Arizona Christian School Tuition Organization, 586 F.3d 649, 662

(9th Cir. 2009) (O’Scannlain, J., dissenting from denial

of rehearing en banc), rev’d, 563 U.S. 125 (2011).

The fact that religious schools ultimately benefit

from families’ and donors’ exercise of choice cannot justify application of a provision that singles out religious

33

choices for exclusion. The state court here, like the

state agency in Trinity Lutheran, sought to justify discrimination based on “nothing more than” a “preference for skating as far as possible from religious

establishment concerns.” Trinity Lutheran, 137 S. Ct.

at 2024. The court said that Montana’s ban on aiding

religious schools not only was broader than the federal

Establishment Clause but was “unique from other

states’ no-aid provisions”: “ ‘among the most stringent

no-aid clauses in the nation.’ ” Pet. App. 16, 21, 19

(brackets and citation omitted).

As in Trinity Lutheran, this interest “cannot qualify as compelling” under the “rigorous” showing required to justify discrimination against religion. 137

S. Ct. at 2024. As in prior cases, “ ‘the state interest asserted here—in achieving greater separation of church

and State than is already ensured under the Establishment Clause’ ”—cannot justify applying the discriminatory state rule. Id. (quoting Widmar v. Vincent, 454

U.S. 263, 276 (1981)).

Finally, this discrimination is barred even if most

families choose to use SSO scholarships at religious

schools. This Court has repeatedly held that “[t]he constitutionality of a neutral educational aid program

simply does not turn on whether and why, in a particular area, at a particular time, most private schools are

religious, or most recipients choose to use the aid at a

religious school.” Zelman, 536 U.S. at 657 (criticizing

such approach for producing “absurd” result that a

program would be legal in some locations and not others); Mueller v. Allen, 463 U.S. 388, 401 (1983) (“Such

34

an approach would scarcely provide the certainty that

this field stands in need of, nor [are there] principled

standards by which such statistical evidence might be

evaluated.”); Agostini v. Felton, 521 U.S. 203, 221 (1997).

Those were Establishment Clause decisions. But

it would be just as absurd and unworkable to allow denials of benefits under the Free Exercise Clause on the

ground that too many beneficiaries choose to apply the

benefits at religious schools.

When a program’s terms are neutral, the percentage of benefits used at religious schools does not prove

the existence or nonexistence of genuine private

choice. Rather, it commonly reflects “the zeal of [the]

adherents” of those faiths for providing, supporting,

and using religious education. Zorach, 343 U.S. at 313.

See, e.g., Zelman, 536 U.S. at 657 (noting that 82 percent share of voucher-participating private schools

that were religious corresponded with 81 percent share

of overall Ohio private schools that were religious).11

11

For all the reasons in text, the tax credit for private-school

donations in itself promotes individuals’ and families’ voluntary

choices (so barring religious choices from the program is unconstitutional). But in addition, the legislature simultaneously enacted a credit (likewise capped at $150) for donations to public

schools addressing “innovative educational programs and technology deficiencies.” Mont. Code Ann. § 15-30-3110. And of course

state and local governments in Montana spend vast sums on free

public schools available to all students. No assertion can be made

that the state is pushing anyone toward religious education, since

that question “must be answered by evaluating all options” the

state provides. Zelman, 536 U.S. at 655-56 (emphasis in original).

35

Under a neutral choice-based program, groups

that approach education from secular perspectives (or

other religious perspectives) can exercise the same

choice and zeal to create their own schools, which

would then be eligible to accept students with SSO

scholarships. A program encouraging donations lowers

the barriers to forming such schools. Montana’s program might have done so had it been allowed to continue in existence.

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

CONCLUSION

The decision of the Montana Supreme Court

should be reversed. The case should be remanded to

that court to be decided without regard to Article X,

§ 6, and on grounds that do not discriminate against

religious schools and families using them.

Respectfully submitted,

DOUGLAS LAYCOCK

727 E. Dean Keeton St.

Austin, TX 78705

(512) 232-1224

dlaycock@law.virginia.edu

THOMAS C. BERG

MSL 400, 1000 LaSalle Ave.

Minneapolis, MN 55403

(651) 962-4918

tcberg@stthomas.edu

KIMBERLEE WOOD COLBY

Counsel of Record

REED N. SMITH

CENTER FOR LAW AND

RELIGIOUS FREEDOM

CHRISTIAN LEGAL SOCIETY

8001 Braddock Rd., Suite 302

Springfield, VA 22151

(703) 894-1087

kcolby@clsnet.org

Counsel for Amici Curiae

September 18, 2019