Espinoza v. Montana Dept. of Revenue
The Supreme Court ruled that Montana violated the First Amendment by applying its state constitution's ban on aid to religious schools to wipe out a private school scholarship program, because that ban discriminated against families and schools based on religious identity.
The decision limits how states can use 'no-aid' constitutional provisions — adopted by more than 30 states, many with roots in 19th-century anti-Catholic sentiment — to keep religious schools out of educational benefit programs that are open to private schools generally.
“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
The majority's core holding on when states must include religious schools in private school benefit programs.
How it got here: Trial court blocked the administrative rule barring religious schools; the Montana Supreme Court reversed and struck the entire scholarship program; the mothers petitioned the Supreme Court, which granted review.
The Case in Depth
What happened
Montana created a scholarship program in 2015 that used private donations and a modest tax credit to fund private school tuition. Three mothers whose children attended Stillwater Christian School sought to use these scholarships for religious-school tuition. A state agency barred religious schools from the program, citing a state constitutional provision prohibiting government aid to church-controlled schools. A state trial court struck down that bar, but the Montana Supreme Court then eliminated the entire scholarship program as violating the state constitution.
The question before the Court
Can a state use its constitution's ban on aid to religious schools to exclude them from an otherwise available private school scholarship program?
The Court's answer
Yes — the Free Exercise Clause barred Montana from applying its state constitution's "no-aid" provision to exclude religious schools from the scholarship program. Montana's provision excluded schools based purely on their religious identity — exactly the kind of status-based discrimination the Court had already condemned in its 2017 Trinity Lutheran decision. Because a state's interest in achieving greater church-state separation than the federal Constitution already requires cannot count as a compelling interest, the exclusion failed the most demanding constitutional standard and violated the First Amendment.
The Court also rejected the argument that the Montana Supreme Court's decision to eliminate the entire scholarship program — rather than just restrict religious schools — fixed the problem. That elimination was not a neutral, independent state-law choice. It flowed directly from the Montana court's initial constitutional error of applying the no-aid provision to bar religious schools in the first place. The Supremacy Clause required the Montana court to disregard the no-aid provision and uphold the program.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Families who choose religious schools in states with similar constitutional bans on aid to church-controlled schools will now have access to the same government scholarship and tax-credit programs available to families choosing secular private schools. State agencies administering education benefit programs will need to open those programs to religious schools rather than relying on no-aid provisions to exclude them.
What changes now
The Montana Supreme Court must reconsider the case consistent with the Supreme Court's ruling. Because the scholarship program was eliminated as a direct result of the lower court's constitutional error, the reversal effectively restores the program as the Montana Legislature created it. The Montana Legislature retains authority to modify or repeal the program in the future. More broadly, the ruling may require states with similar "no-aid" constitutional provisions to open comparable education benefit programs to religious schools.
What this does not decide
The Court did not decide whether Montana's no-aid provision is unconstitutional on its face, or whether it violates the Equal Protection Clause or Establishment Clause as applied. Nor does the ruling require any state to create a private school scholarship program — only that if such a program exists, it cannot exclude schools based on religious identity.
Concurrences and dissents
Concurrence — Justice Thomas
Justice Thomas agreed with the result but wrote separately to argue that the Court's overbroad interpretation of the Establishment Clause is the deeper problem hampering religious freedom. At the founding, Thomas argues, the Establishment Clause was designed only to prevent the federal government from imposing a national religion on the states — it was never meant to apply to states at all. This modern misreading has allowed governments to justify restrictions on religious freedom as required by the Establishment Clause, and Thomas calls for the Court to correct course.
Concurrence — Justice Alito
Justice Alito joined the majority in full but wrote separately to document the anti-Catholic origins of Montana's no-aid provision and the broader Blaine Amendment movement. Drawing on the Court's recent ruling in Ramos v. Louisiana — which held that a law's discriminatory origins remain legally relevant — Alito argued those origins are even more relevant here because Montana's provision retained the original bigoted code language ('sectarian') even when re-adopted in 1972.
Concurrence — Justice Gorsuch
Justice Gorsuch joined the majority in full but argued that the majority's reliance on a 'religious status' versus 'religious use' distinction is unstable and ultimately unnecessary. The Free Exercise Clause protects not only the right to hold religious beliefs but also the right to act on them. Whether Montana's exclusion is characterized as targeting religious identity or religious conduct, it violates the First Amendment — the distinction does no useful work.
Dissent — Justice Ginsburg
Justice Ginsburg argued that the case presented no actual Free Exercise violation. When the Montana Supreme Court struck the entire scholarship program, it placed religious and secular schools on identical footing — neither could receive benefits. Without any differential treatment based on religion, there was no constitutional injury for the Court to remedy. The majority answered a question the case did not present.
Dissent — Justice Breyer
Justice Breyer argued that the Religion Clauses require 'play in the joints' — constitutional space for states to decline to fund religious activity even when not compelled to do so by the Establishment Clause. This case closely resembles Locke v. Davey, where the Court allowed Washington to deny scholarships for clergy training, because both involve a state choosing not to fund essentially religious education. The majority's rigid strict-scrutiny rule eliminates that flexibility and will create serious practical problems for educational programs across the country. (Justice Kagan joined only Part I.)
Dissent — Justice Sotomayor
“Today's ruling is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.”Justice Sotomayor's central objection that the Court reached out to decide a question that was no longer live.
Justice Sotomayor argued the Court should not have reached the merits at all. The Montana Supreme Court struck the scholarship program on state-law grounds without deciding any federal question, leaving nothing for the Supreme Court to remedy. Even on the merits, governments have historically had room to decline to subsidize religious activity; Locke supports Montana's position. The ruling appears to compel Montana to recreate a program that the Constitution never required, based on a constitutional question nobody actually litigated.
How the Court got there
The legal reasoning, step by step
- The Free Exercise Clause — applied to states through the Fourteenth Amendment — protects people from government rules that impose special burdens based on religious identity. The Court's 2017 Trinity Lutheran decision established that automatically excluding eligible recipients from a public benefit program 'solely because of their religious character' imposes a penalty on religious exercise that triggers the strictest form of constitutional review.
- Montana's no-aid provision excluded schools from the scholarship program based purely on religious identity — whether a school was 'controlled in whole or in part by any church, sect, or denomination.' The Montana Supreme Court itself described the exclusion as targeting 'sectarian,' 'religiously affiliated,' and 'church-controlled' schools. The Court found this to be status-based religious discrimination identical in kind to the Missouri policy struck down in Trinity Lutheran.
- The Court rejected the argument that the case was instead governed by Locke v. Davey (2004), where the Court allowed Washington State to deny scholarships to students pursuing degrees in devotional theology. Locke involved a use-based restriction tied to a specific essentially religious activity — preparing for the ministry — backed by a strong historical tradition against state-funded clergy. Montana's no-aid provision, by contrast, bars all aid to any religious school simply because of what it is, with no comparable historical tradition to support it.
- Because the discrimination was status-based, strict scrutiny — the most demanding constitutional standard, requiring a compelling government interest pursued through a closely tailored law — applied. Montana's desire for greater church-state separation than the federal Constitution already requires is not a compelling interest. Its interest in protecting public schools also failed because the provision bars aid only to religious private schools, not all private schools, making it fatally under-inclusive.
- The Court also rejected the argument that the Montana Supreme Court's decision to eliminate the entire scholarship program cured the constitutional problem. The lower court's initial application of the no-aid provision to bar religious schools was the constitutional error; the elimination of the program was simply a consequence of that error, not an independent neutral decision. Under the Supremacy Clause, the Montana court was obligated to disregard the no-aid provision and uphold the program as written.
Doctrinal impact
Cases affected by this decision
Reaffirms Trinity Lutheran Church of Columbia, Inc. v. Comer (582 U.S. ___)
Extends Trinity Lutheran's rule against status-based religious exclusions from public benefits to the school tuition context.
Distinguishes Locke v. Davey (540 U.S. 712)
Locke only allows use-based restrictions tied to specific religious activities like clergy training, not broad exclusions of all religious schools.