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 AMICUS CURIAE OF FREEDOM

FROM RELIGION FOUNDATION, CENTER

FOR INQUIRY, AMERICAN ATHEISTS, AND

AMERICAN HUMANIST ASSOCIATION

IN SUPPORT OF RESPONDENTS

-----------------------------------------------------------------ANDREW SEIDEL

Counsel of Record

PATRICK ELLIOTT

BRENDAN JOHNSON

FREEDOM FROM RELIGION FOUNDATION

P.O. Box 750

Madison, WI 53701

(608) 256-8900

aseidel@ffrf.org

Counsel for Amici Curiae

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE............................

1

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

3

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

4

I. The structure and purpose of Montana’s

neo-voucher program fall under the broad

text of the Montana No Aid Clause .............

6

II.

No Aid Clauses, including Article X, Section 6

of the Montana Constitution, foster and protect the religious freedom of all citizens .....

9

III.

The principle underlying No Aid Clauses

dates to America’s founding and was uniformly accepted after years of experience ... 13

IV.

Undermining No Aid Clauses and offering

direct or indirect aid to religious education

will require government regulation of religious schools ................................................. 16

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

21

ii

TABLE OF AUTHORITIES

Page

CASES

Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1

(1947) ........................................................... 12, 13, 17

Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. E.E.O.C., 565 U.S. 171 (2012) ..................17

McCollum v. Bd. of Ed. of Sch. Dist. No. 71, 333

U.S. 203 (1948) .................................................. 12, 13

Sch. Dist. of Abington Twp., Pa. v. Schempp, 374

U.S. 203 (1963) ........................................................12

Torcaso v. Watkins, 367 U.S. 488 (1961) .....................13

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017)........................... 14, 15

Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664

(1970) .......................................................................14

OTHER AUTHORITIES

Andrew L. Seidel, Bad History, Bad Opinions:

How “law office history” is leading the courts

astray on school board prayer and the First

Amendment, 12 Ne. U. L. Rev. ___ (forthcoming Dec. 2019) ..........................................................14

1 ANNALS OF CONG. 758–59 (1789) (Joseph Gales

ed., 1834) .................................................................11

Benjamin Franklin, Letter from Benjamin Franklin to Richard Price, 9 October 1780, in THE

PAPERS OF BENJAMIN FRANKLIN, 389–99 (Barbara B. Oberg, ed., 1997) .........................................22

iii

TABLE OF AUTHORITIES—Continued

Page

Erin Richards, Former employees cast doubt on

voucher school’s operations, MILWAUKEE JOURNAL SENTINEL (Dec. 15, 2014), https://bit.ly/

2n7I9Nf....................................................................20

Erin Richards, Leaders of closed Milwaukee

voucher school are now in Florida, MILWAUKEE

JOURNAL SENTINEL (Jan. 15, 2014), https://

bit.ly/2095ck8 ..........................................................19

Erin Richards, Milwaukee voucher school LifeSkills Academy closes in the dead of the night,

MILWAUKEE JOURNAL SENTINEL (Jan. 14, 2014),

https://bit.ly/2oAnm5b ............................................18

THE FEDERALIST NO. 69 (Alexander Hamilton) ............ 10

Frances Paterson, Building a Conservative Base:

Teaching History and Civics in Voucher-Supported Schools, The Phi Delta Kappan (Oct.

2000), https://www.jstor.org/stable/20439835 ............20

1 James Madison, Detached Memoranda, Ca. 31

January 1820, in THE PAPERS OF JAMES MADISON, RETIREMENT SERIES, 4 MARCH 1817 – 31

JANUARY 1820, 600–27 (ed. David B. Mattern,

J. C. A. Stagg, Mary Parke Johnson, and Anne

Mandeville Colony, 2009) ..........................................5

8 James Madison, Memorial and Remonstrance

against Religious Assessments, [ca. 20 June]

1785, in THE PAPERS OF JAMES MADISON, 10

MARCH 1784 – 28 MARCH 1786, 295–306 (ed.

Robert A. Rutland and William M. E. Rachal,

1973) .................................................................... 5, 10

iv

TABLE OF AUTHORITIES—Continued

Page

Katherine Stewart, THE GOOD NEWS CLUB: THE

CHRISTIAN RIGHT’S STEALTH ASSAULT ON AMERICA’S CHILDREN (Public Affairs, 2012) ................... 8, 9

Kyle Olson, Jesus Isn’t in Michigan, TOWNHALL

(March 18, 2011), https://bit.ly/2qz27Sx...................8

Molly Beck, State paid $139 million to schools

terminated from voucher program since 2004,

WISCONSIN STATE JOURNAL (Oct. 12, 2014),

https://bit.ly/36ObTR5 .............................................18

Sarah Carr, Who cleans up problem choice schools?,

MILWAUKEE JOURNAL SENTINEL (Sept. 15, 2003),

https://goo.gl/zoCc45 ...............................................19

2 Thomas Jefferson, 82. A Bill for Establishing

Religious Freedom, 18 June 1779, in THE PAPERS OF THOMAS JEFFERSON, 545 (Julian P.

Boyd, ed., 1950) ................................................... 5, 11

1

INTEREST OF AMICI CURIAE1

Amici are public-interest organizations that advance the rights and freedoms of atheists, agnostics,

and nonbelievers.

The Freedom From Religion Foundation is the

largest national association of freethinkers, representing atheists, agnostics, and others who form their opinions about religion based on reason, rather than faith,

tradition, or authority. Founded in 1978 as a 501(c)(3)

nonprofit, FFRF has over 30,000 members, including

members in every state, including Montana, and the

District of Columbia. FFRF has 23 local and regional

chapters across the country. FFRF’s purposes are to educate about nontheism and to preserve the cherished

constitutional principle of separation between religion

and government. FFRF ends hundreds of state/church

entanglements each year through education and persuasion, while also litigating, publishing a newspaper, and broadcasting educational programming. FFRF,

whose motto is “Freedom depends on freethinkers,”

works to uphold the values of the Enlightenment.

The Center For Inquiry is a nonprofit organization

devoted to promoting reason, science, critical thinking,

and humanist values. Through education, research,

publishing, social services, and other activities, including litigation, CFI advocates for public policy that is

1

Rule 37 statement: Both parties issued blanket consents to

the filing of amicus briefs. No party’s counsel authored any part

of this brief. Amici alone funded this brief ’s preparation and submission.

2

rooted in science, evidence, and objective truth. CFI

works to defend the rights of nonbelievers around the

world and to protect the freedom of inquiry that is vital

to a free society.

American Atheists, Inc. is a national civil rights

organization that works to achieve religious equality

for all Americans by protecting what Thomas Jefferson

called the “wall of separation,” created by the First

Amendment, between government and religion. The

organization strives to create an environment where

atheism and atheists are accepted as members of

the nation’s communities and where casual bigotry

against the atheist community is seen as abhorrent

and unacceptable. American Atheists promotes the understanding of atheists through education, outreach,

and community building, and works to end the stigma

associated with being an atheist in America.

The American Humanist Association is a national

nonprofit membership organization based in Washington, D.C., with over 252 local chapters and affiliates

in 43 states and the District of Columbia. Founded

in 1941, the AHA is the nation’s oldest and largest

Humanist organization. Humanism is a progressive

lifestance that affirms—without theism or other supernatural beliefs—a responsibility to lead a meaningful,

ethical life that adds to the greater good of humanity.

The mission of the AHA’s legal center is to protect one

of the most fundamental principles of our democracy:

the constitutional mandate of separation of church

and state. To that end, the AHA’s legal center has litigated dozens of Establishment Clause cases in state

3

and federal courts nationwide, including in the U.S.

Supreme Court.

As secular and humanist organizations that promote freedom of conscience for those who do not practice religion, amici offer a unique viewpoint on—and

share significant concerns about—government funding

of private religious schools and the entanglement between state and church it entails.

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

SUMMARY OF ARGUMENT

This case is not about discrimination; it is about

government-compelled support of religion. Above all,

religious freedom means that no taxpayer is compelled

to financially support a religion or religious education

that is not their own. No Aid Clauses, including the

Montana Constitution’s, foster and protect the religious

freedom of all citizens by enshrining this principle.

Montana’s neo-voucher program violated the Montana

No Aid Clause and, therefore, this basic principle.

The principle underlying No Aid Clauses—that

taxpayers cannot be forced to support religion or religious education—dates to America’s founding and

was uniformly accepted after years of experience. The

American experiment in separating state and church

succeeded. We lack the oppressive history of government-enforced tithing. As a result, some fail to understand that the No Aid principle actually protects

religious freedom.

4

If this Court undermines that history of success

and invents a constitutional right for religion to dip

into the public purse, state-church relations will be

altered drastically. This will bring down government

regulation on religious schools. When public money

flows to private schools, however indirect the route,

regulation is foreordained because the unregulated

flow of funds to unaccountable organizations guarantees abuse. This abuse can be seen in pilot voucher programs right now. Keeping religious schools out of the

public treasury allows them to remain free from government regulation and public accountability.

No Aid Clauses foster religious freedom and this

Court should reaffirm that principle.

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

ARGUMENT

The Montana No Aid Clause protects and fosters

the religious freedom of all citizens. It does so by ensuring that the state does not wield its taxing power to

fund religious education either directly or indirectly. In

this way, no taxpayer is compelled to financially support a religion that is not their own.

In this case, Montana Christians claiming discrimination have drowned out that basic principle. But

it remains true nonetheless. The constitutional prohibition on states taxing citizens for the benefit of religion, directly or indirectly, guarantees religious liberty

for all. As Thomas Jefferson explained in the Virginia Statute for Religious Freedom, “to compel a man

5

to furnish contributions of money for the propagation

of opinions which he disbelieves and abhors, is sinful

and tyrannical. . . .”2 James Madison called the statute

“a true standard of Religious liberty.”3 He did so because it stood as “the great barrier [against] usurpations on the rights of conscience.”4

Religious liberty is imperiled in this case. But this

case is not about discrimination; it is about government-compelled support of religion. The right to be free

from that compulsion is religious liberty. That right is

the progenitor of every other facet of religious freedom.

That right is possessed by every Montana citizen and

taxpayer, not just a few Christian parents. That is the

right at issue here.

The state’s taxing power is inherently coercive.

When that power is used directly or indirectly to benefit religious education, it violates the rights of conscience of citizens.5 To employ the state’s taxing power

2

2 Thomas Jefferson, 82. A Bill for Establishing Religious

Freedom, 18 June 1779, in THE PAPERS OF THOMAS JEFFERSON,

545–53 (Julian P. Boyd, ed., 1950).

3

1 James Madison, Detached Memoranda, Ca. 31 January

1820, in THE PAPERS OF JAMES MADISON, RETIREMENT SERIES, 4

MARCH 1817 – 31 JANUARY 1820, 600–27 (ed. David B. Mattern, J.

C. A. Stagg, Mary Parke Johnson, and Anne Mandeville Colony,

2009).

4

Id.

5

8 James Madison, Memorial and Remonstrance against Religious Assessments, [ca. 20 June] 1785, in THE PAPERS OF JAMES

MADISON, 10 MARCH 1784 – 28 MARCH 1786, 295–306 (ed. Robert

A. Rutland and William M. E. Rachal, 1973) (“The Religion then

of every man must be left to the conviction and conscience of every

man; and it is the right of every man to exercise it as these may

6

in such a manner is to permit the very tyranny that

Jefferson and Madison sought to restrain with the Virginia Statute for Religious Freedom.

Religious freedom means that no citizen can be

compelled to subsidize a religion that is not their own.

If this Court abandons this basic principle, we will

have reached a disastrous moment in American history: the era of government-compelled tithing.

I.

The structure and purpose of Montana’s

neo-voucher program fall under the broad

text of the Montana No Aid Clause.

While some states have adopted school “voucher”

programs to fund private education, Montana’s program involves a tax scheme that funds tuition via a

dollar-for-dollar credit. Such neo-voucher programs

are the product of combining tax and education laws.

The Montana Supreme Court has definitively determined that § 15-30-3111 of the Montana Code provides

state aid for private religious education. The court

said, “The Legislature, by enacting a statute that provides a dollar-for-dollar credit against taxes owed to

the state, is the entity providing aid to sectarian

schools via tax credits in violation of Article X, Section

6.” App. 25 ¶30. To parse this neo-voucher program or

contrast it to other voucher programs in other states is

dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the

evidence contemplated by their own minds cannot follow the dictates of other men. . . .”).

7

to miss the plain truth of the matter: as determined by

the Montana Supreme Court, this program used the

state’s coercive taxing power to subsidize tuition payments for religious education.

The Montana Supreme Court’s determination is

consistent with how the program operates. Taxpayers

owe taxes to Montana. They are relieved of that obligation if they divert the payment to an entity that

funds religious education. Montana appropriated $3

million to cover the anticipated shortfall from forgiving

those obligations. This program would not exist but for

the taxes owed to the state—the taxes that are to be

forgiven and which exist only because of how Montana

was manipulating its taxing power. App. 40 ¶53 (Gustafson, J., concurring).

The Montana Supreme Court interpreted the

Montana Constitution as sufficiently broad to encompass and end this neo-voucher program. Montana

“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 [school].” App. 17–18 ¶18–19. That text is clear, emphatic, and sweeping.

The structure of the neo-voucher program fell under the No Aid Clause, but the structure is less important than its purpose. The purpose of neo-vouchers

is the same as vouchers. Sponsors of these laws seek

to: 1) aid religious education and 2) undermine public

education. These two purposes conflict with the purpose of Montana’s No Aid Clause, made clear during

8

the state’s 1972 Constitutional Convention, which was

to ensure that “the public school system . . . receive ‘unequivocal support.’ ” App. 19 ¶22.

Both purposes are religious, but the second purpose

is rarely spoken of openly, at least now that “school

choice” is the focus-group-tested language adopted by

the movement. But in the minds of some school choice

activists, the erosion of traditional Protestantism in

America is due to public schools. These same activists

“see the weakening of support for public education as

a desirable side effect or even a goal of their work.”6 As

one researcher and author has found, the national

groups supporting religious initiatives “see our system of

public education as a bad thing.”7 She reports, “These

are the same groups that sponsor efforts to undermine,

defund, and perhaps ultimately destroy the system altogether.”8

Sometimes, proponents of neo-vouchers are open

about this goal. Kyle Olson helped create and chaired

National School Choice Week through its 2011 birth.

As its executive director, Olson wrote, “I would like to

think that, yes, Jesus would destroy the public education temple and save the children from despair and a

hopeless future.”9 While “school choice” is theoretically

6

Katherine Stewart, THE GOOD NEWS CLUB: THE CHRISTIAN

RIGHT’S STEALTH ASSAULT ON AMERICA’S CHILDREN, 5 (Public Affairs, 2012).

7

Id.

8

Id.

9

Kyle Olson, Jesus Isn’t in Michigan, TOWNHALL (March 18,

2011), https://bit.ly/2qz27Sx. He went on to say, “And he would

9

about providing choice in education, for many it is

about ending public education.

The neo-voucher scheme here provides a dollarfor-dollar tax credit that undermines public education.

Montana is within its rights to do just what its Constitution says: give the public school system its “unequivocal support,” including to the point of refusing

to incentivize private education. App. 19 ¶ 22.

II.

No Aid Clauses, including Article X, Section

6 of the Montana Constitution, foster and

protect the religious freedom of all citizens.

The true purpose behind Montana’s No Aid Clause

is to protect religious freedom. Failing to enforce this

clause or riddling it with unprecedented exceptions

erodes religious liberty.

The principle embodied in every No Aid Clause, including Montana’s, is that the government should not

tax citizens to benefit a religion. Religious worship, religious education, and maintaining places of worship

should be the result of free and voluntary support

given by the faithful. James Madison, the Father of

the Bill of Rights and the Constitution, explained this

smash a temple that has been perverted to meet the needs of the

administrators, teachers, school board members, unions, bureaucrats and contractors. But, Jesus isn’t in Michigan—or Indiana—

so it’s incumbent upon leaders to do something about it.” See also

Katherine Stewart, THE GOOD NEWS CLUB: THE CHRISTIAN RIGHT’S

STEALTH ASSAULT ON AMERICA’S CHILDREN at 254.

10

purpose well in his condemnation of a three-penny tax

to support Christian preachers and churches: “The Religion then of every man must be left to the conviction

and conscience of every man,” not the taxing power of

the state.10

American governments simply do not have the

power to tax citizens to fund churches and religious education. When they do so, they are acting ultra vires.

Alexander Hamilton explained this in The Federalist

No. 69, when he wrote that the government “has no

particle of spiritual jurisdiction.” Madison supported

this sentiment, arguing that “[i]t is the duty of every

man to render to the Creator such homage and such

only as he believes to be acceptable to him.”11 This principle is vital to ensure true religious freedom.

The compulsory support of a religion that is not

one’s own is anathema to American principles. Religious liberty cannot exist where the government can

force citizens to donate to a sect that, for example, condemns them to eternal damnation and torture for exercising that freedom of religion. The Virginia Statute

for Religious Freedom recognizes that governmentcompelled support for one’s own religion also violates

the rights of conscience: “[E]ven the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of

giving his contributions to the particular pastor whose

10

Madison, Memorial and Remonstrance, ¶1.

James Madison, Memorial and Remonstrance Against Religious Assessments, ¶1 (1785).

11

11

morals he would make his pattern.”12 Thus, striking

down Montana’s No Aid Clause would jeopardize the

religious freedom of every citizen of the state, including religious adherents.

It is not just direct taxes that violate religious liberty but employing the taxing power in any manner to

fund sectarian education. Daniel Carroll, a Catholic

representative to the Constitutional Convention from

Maryland, put it best during the congressional debates

on the First Amendment. Carroll said that “the rights

of conscience are, in their nature, of peculiar delicacy,

will little bear the gentlest touch of the governmental

hand.”13 The government hand at issue here is not the

one refusing to slip cash to Christian schools, but rather, the hand reaching into every citizen’s pocket to

extract that cash—and it’s not particularly gentle.

The Founders determined that the government

could not subsidize religion and this Court reaffirmed

that principle when it first applied the Establishment

Clause to the states. In Everson, the Court said:

The ‘establishment of religion’ clause of the

First Amendment means at least this: Neither

a state nor the Federal Government can set

up a church. Neither can pass laws which

aid one religion, aid all religions, or prefer one

12

2 Thomas Jefferson, 82. A Bill for Establishing Religious

Freedom, 18 June 1779, in THE PAPERS OF THOMAS JEFFERSON,

2:545–53 (Julian P. Boyd, ed., 1950).

13

1 ANNALS OF CONG. 758–59 (1789) (Joseph Gales ed., 1834).

12

religion over another . . . No tax in any amount,

large or small, can be levied to support any

religious activities or institutions, whatever

they may be called, or whatever form they may

adopt to teach or practice religion. . . .

Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 15–16

(1947) (emphasis added).

On this point, the Court was unanimous. The

Court ruled just one year later that allowing religious

instructors from various denominations into public

schools violated the Establishment Clause. McCollum

v. Bd. of Ed. of Sch. Dist. No. 71, 333 U.S. 203 (1948).

The Court relied upon Everson and the use of taxpayer

money, saying, “This is beyond all question a utilization of the tax-established and tax-supported public

school system to aid religious groups to spread their

faith.” Id. at 210. The school system in McCollum argued that the program was permissible because the

First Amendment “was intended to forbid only government preference of one religion over another, not an

impartial governmental assistance of all religions.” Id.

at 211. The Court soundly rejected this argument and

found that, rather than manifesting governmental

“hostility” to religion, the First Amendment protected

religious liberty by erecting “a wall between Church

and State which must be kept high and impregnable.”

Id. at 211–12.

The Supreme Court later reiterated a strong commitment to the religious liberty principles articulated

in Everson, including the prohibition on giving public

aid to religion. See Sch. Dist. of Abington Twp., Pa. v.

13

Schempp, 374 U.S. 203, 216–17 (1963) (discussing the

majority and dissenting opinions in Everson); Torcaso

v. Watkins, 367 U.S. 488, 493 (1961) (recalling that, in

the McCollum case, the Court was “urged to repudiate”

the Everson principles and noting it “declined to do

this, but instead strongly reaffirmed what had been

said in Everson. . . .”). The Court’s lengthy discussions

of the meaning and purposes of the First Amendment’s

religion clauses in these cases focused on the separation of religion and government—to the benefit of both.

The Court never hinted that the religion clauses actually require taxpayers to fund religion.

Our nation, our Founders, and the justices of this

Court have always understood that religious liberty

flourishes when government does not tax citizens to

aid religion. It is no surprise then that state constitutions clarified the protection for the religious liberty of

citizens. Consistent with this fundamental truth, delegates at the Montana Constitutional Convention in

1972 sought to protect religious liberty by ensuring

that the state did not coerce Montanans into subsidizing religious institutions.

III. The principle underlying No Aid Clauses

dates to America’s founding and was uniformly accepted after years of experience.

Though recent opponents to the separation of

state and church have used revisionist history in an

14

attempt to rewrite state-church relations,14 the federal

government’s early history of state-church separation

has been clear to this Court for more than half a century. “[F]or the men who wrote the Religion Clauses of

the First Amendment the ‘establishment’ of a religion

connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz

v. Tax Comm’n of City of N.Y., 397 U.S. 664, 668 (1970).

The history of the states is more varied, each

adopting disestablishment principles at different times

and to varying degrees. New Jersey, Pennsylvania,

Maryland, North Carolina, and Virginia began disestablishment in 1776. Other states took longer to realize the severe problems with sponsoring or financially

supporting religion, disestablishing up through the

1830s. See Trinity Lutheran Church of Columbia, Inc.

v. Comer, 137 S. Ct. 2012, 2032-36 (2017) (Sotomayor,

J., dissenting). Montana followed this tradition when

writing and rewriting its Constitution.

Regardless of the timeline, in the case of disestablishment, America’s “laboratories of democracy”

yielded remarkably consistent results. Every state discovered a self-evident truth: there is no freedom of religion without a government that is free from religion.

States that funded churches via established religions

changed course. “Every state establishment saw laws

passed to raise public funds and direct them toward

14

Andrew L. Seidel, Bad History, Bad Opinions: How “Law

School Office History” is leading the Courts Astray on School

Board Prayer and the First Amendment, 12 Ne. L. Rev. ___ (forthcoming Dec. 2019).

15

houses of worship and ministers. And as the States all

disestablished, one by one, they all undid those laws.”

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

137 S. Ct. 2012, 2033 (2017) (Sotomayor, J., dissenting).

This history is crucial to the issue before this

Court. These states experienced religious establishments and after lengthy and careful debates decided to

stop taxing citizens to support religion because doing

so violated the civil rights of those citizens. The states

learned this hard lesson over decades of living in a pluralistic America, which has only become more diverse

nearly two centuries later.

This history seems distant today, but was the

result of centuries—millennia—of oppression from religion blended with government. Thanks to the separation of state and church, Americans do not have that

oppressive experience. And some have become complacent. We are, in some sense, victims of the successful

American experiment in separating state and church.

As a result, many Americans lack a basic understanding of how state-church separation and the No Aid

principle actually protect religious freedom. That has

led some, including the well-meaning parents in this

case, to consider whether or not the provisions are still

valuable. They are, and this Court ought not to strike

them down when they have served this country so well

in protecting religious liberty.

16

IV. Undermining No Aid Clauses and offering

direct or indirect aid to religious education

will require government regulation of religious schools.

Granting religious schools a right to access the public purse will eventually lead the government to regulate

religious schools. It must. Where public money goes,

public accountability must follow. State governments

have generally had a hands off approach to religious

institutions, including private religious schools, which

are largely unregulated by state education agencies.

That will change if private schools receive public funds.

Justice Robert Jackson explained that separating

state and church, including financially, benefits both

government and religion while fostering religious freedom for all. Justice Jackson was a model justice. He

took a leave of absence from the court to prosecute

Nazi war crimes as U.S. Chief of Counsel at Nuremberg. He checked himself out of the hospital on the day

the Supreme Court handed down Brown v. Board of

Education so that he could be present in the courtroom

and emphasize the Court’s unanimity in that historic

case. In Korematsu, Justice Jackson wrote one of history’s greatest dissents, condemning America’s WWII

internment camps for citizens of Japanese ancestry.

In a less famous though similarly powerful dissent,

he explained how the Constitution protects religious

freedom. The First Amendment “take[s] every form

of propagation of religion out of the realm of things

which could directly or indirectly be made public business and thereby be supported in whole or in part at

17

taxpayers’ expense.” Everson v. Bd. of Educ. of Ewing

Twp., 330 U.S. 1, 26–27 (1947) (Jackson, J., dissenting)

(emphasis added). Justice Jackson continued, “That is

a difference which the Constitution sets up between

religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom. . . .” Id.

Justice Jackson also highlighted the paramount

rationale underlying the religious freedom protections

in the First Amendment:

This freedom . . . was set forth in absolute

terms, and its strength is Its rigidity. It was

intended not only to keep the states’ hands

out of religion, but to keep religion’s hands off

the state, and above all, to keep bitter religious

controversy out of public life by denying to

every denomination any advantage from getting control of public policy or the public purse.

Id. (emphasis added).

State-church separation gives religion significant benefits, preventing this Court from adjudicating

church ministerial disputes, for instance. See, e.g.,

Hosanna-Tabor Evangelical Lutheran Church & Sch.

v. E.E.O.C., 565 U.S. 171, 188 (2012). Attached to these

benefits are relatively few conditions, most importantly, that taxpayers will not fund religion.

The push to eviscerate No Aid Clauses like Montana’s is meant to augment the benefits churches receive under the separation of state and church, and

eliminate those conditions. Churches and religious

18

schools want to have their cake—which they think

American taxpayers must buy—and eat it too.

If they are successful, this will lead to additional

state oversight and control of religious schools. When

public money flows to private schools, however indirect

the route, regulation is foreordained because the unregulated flow of funds to unaccountable organizations

guarantees abuse.

The country’s longest-lived private voucher scheme,

the Milwaukee Parental Choice Program, is a prime

example. The program has been bloated with abuse.

Over a 10-year period, more than $139 million in taxpayer funds went to Milwaukee voucher schools that

were ejected from the program for failing to meet basic

requirements.15

The abuse is startling. One Milwaukee school run

by a preacher, LifeSkills Academy, collected more than

$200,000 in state subsidies for the 2012–13 academic

year before closing abruptly “in the dead of night” in

December, leaving 70 students schoolless.16 State records documented alarming conditions, including allegations that the school: falsified records of National

School Lunch Program meals, served expired food,

served “Ramen noodles with hot sauce and a cup of

15

Molly Beck, State paid $139 million to schools terminated

from voucher program since 2004, WISCONSIN STATE JOURNAL (Oct.

12, 2014), https://bit.ly/36ObTR5.

16

Erin Richards, Milwaukee voucher school LifeSkills Academy

closes in the dead of the night, MILWAUKEE JOURNAL SENTINEL

(Jan. 14, 2014), https://bit.ly/2oAnm5b.

19

water for lunch,” and “cut” whole milk with water.17 A

former employee charged that the preacher falsified

state records and believed he would get away with it

because, “Can’t nothing touch him but God.”18 Over its

six years, LifeSkills collected more than $2.3 million in

public money before shutting down and leaving families of students scrambling to find a new school. The

preacher fled to a gated community in Florida and

opened LifeSkills Academy II.19

Alex’s Academic of Excellence—“Academic” is indeed how this school spelled its name—raked in more

than $3.5 million in taxpayer funds over five years

before closing. Evicted for code violations from two locations, the school ended up in a storefront. According

to reports, “children departed through the back entrance on Thursday afternoon and stood beside a trash

receptacle overflowing with refuse—including the box

spring for a bed—while they waited for buses to arrive.”20 The principal saw employees smoking marijuana in school and witnessed a staffer with a bag of

crack cocaine. The school’s founder and CEO was a

17

Amicus Curiae’s Jan. 30, 2014 Letter to Florida Dept. of Educ.,

detailing these allegations. Available at https://bit.ly/2Nghnwv.

Records supporting allegations available at https://bit.ly/2JL4wQv.

18

Id.

19

Erin Richards, Leaders of closed Milwaukee voucher school

are now in Florida, MILWAUKEE JOURNAL SENTINEL (Jan. 15, 2014),

https://bit.ly/2095ck8.

20

Sarah Carr, Who cleans up problem choice schools?, MILWAUKEE JOURNAL SENTINEL (Sept. 15, 2003), https://goo.gl/zoCc45.

20

convicted rapist who received a 30-year prison term

and served nine years.21

There are plenty of other examples of abuse from

Milwaukee alone. Some voucher schools failed to provide textbooks to students.22 Others taught subjects

from fundamentalist Christian textbooks which claimed

that “a belief in Darwinian evolution” was a cause of

World War II and that through spirituals, “slaves developed the patience to wait on the Lord and discovered that the truest freedom is freedom from the

bondage of sin.”23

If religious schools continue to insist on an invented constitutional right to dip into the public purse,

and if this Court should agree, state-church relations

will be altered in fundamental ways for which nobody

is prepared. Ultimately, accepting public money will

open private schools to government oversight. Keeping

religious schools out of the public treasury allows them

to remain free from government regulation and public

accountability—another way that No Aid Clauses foster religious freedom.

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

21

Id.

Erin Richards, Former employees cast doubt on voucher

school’s operations, MILWAUKEE JOURNAL SENTINEL (Dec. 15, 2014),

https://bit.ly/2n7I9Nf.

23

Frances Paterson, Building a Conservative Base: Teaching

History and Civics in Voucher-Supported Schools, The Phi Delta

Kappan (Oct. 2000), at 151–52, https://www.jstor.org/stable/20439835.

22

21

CONCLUSION

The religious liberty interest threatened in this

case lies with the taxpayer and it dates back to America’s founding. The principle that the state must not

fund religious instruction at taxpayer expense is among

our most fundamental and cherished rights. Over our

long history, there has never been any indication that

religious liberty protections require the government to

financially support religion. The cost of revisiting that

principle now would be felt by every American.

Montana’s neo-voucher program violated the religious freedom of every Montana citizen. The Montana

Supreme Court righted this wrong. Citizens of every

religion and of no religion were coerced into subsidizing religious education with which they fundamentally

disagree. This is, as Jefferson wrote, “sinful and tyrannical.” This Court should allow Montana’s decision not

to subsidize private education to stand. The Montana

Constitution prohibits this use in simple, straightforward terms, and this interpretation is consistent with

fundamental principles of religious liberty and the

First Amendment.

If “We the People” abandon the principle embodied

in No Aid Clauses, citizens will be taxed in ways that

support religion and violate their rights of conscience.

This path is likely to lead to expanded state regulation

on religious institutions and will also weaken our public schools.

Simply put, religion must support itself. Benjamin

Franklin, who cautioned about government support of

22

religion, said, “When a Religion is good, I conceive that

it will support itself; and when it cannot support itself,

and God does not take care to support, so that its Professors are oblig’d to call for the help of the Civil Power,

‘tis a Sign, I apprehend, of its being a bad one.”24 Let

the faithful voluntarily support their faith and their

religious schools. To involve the state in such decisions

violates the religious liberty of all.

Respectfully submitted,

ANDREW SEIDEL

Counsel of Record

PATRICK ELLIOTT

BRENDAN JOHNSON

FREEDOM FROM RELIGION FOUNDATION

P.O. Box 750

Madison, WI 53701

(608) 256-8900

aseidel@ffrf.org

Counsel for Amici Curiae

24

Benjamin Franklin, Letter from Benjamin Franklin to

Richard Price, 9 October 1780, in THE PAPERS OF BENJAMIN FRANKLIN, 389–99 (Barbara B. Oberg, ed., 1997).