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In 5-4 decision, Supreme Court rules states cannot ban public funding for religious schools

WASHINGTON — The Supreme Court ruled Tuesday that states violate the Constitution if they prevent religious schools from receiving some state benefits that are available to other schools.

Chief Justice John Roberts wrote the 5-4 ruling, which further lowered the wall of separation between the church and the state and will likely affect laws or constitutional provisions in more than two-thirds of the nation that bar public funding for churches and religious schools.

The decision gives a boost to the Trump administration’s efforts to get more public support for students in religious schools, while teachers organizations said such a move would hurt the nation’s public schools.

Lily Eskelsen Garcia, president of the teachers union National Education Association, condemned the decision, saying, “An extreme Supreme Court just joined the far-right effort to undermine one of our country’s most cherished democratic institutions: public education.”

The case involved a Montana program launched in 2015 to provide tax credits for people and businesses making donations to private schools. The organizations receiving the contributions passed on the financial aid to parents, who decided which private schools their children should attend.

But shortly after the program was launched, a state agency barred any of the scholarship money from ending up at religious schools. It cited a provision of the Montana Constitution that prohibits “any direct or indirect appropriation or payment … to aid any church, school … controlled in whole or in part by any church.”

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The Montana Supreme Court ruled that the scholarship program violated the state Constitution, so it struck down the entire law, eliminating the payments for both religious and secular schools.The state said that there was no longer any discrimination, because all private schools were treated the same.

But Roberts said that by ending the program, the state improperly discriminated against the schools simply because of their religious status.

“A state need not subsidize private education,” he said. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

Justice Ruth Bader Ginsburg dissented, arguing that by ending the program, Montana no longer discriminated against any private schools.

Justice Stephen Breyer went further, saying the court further blurred the line between respecting religious freedom and preventing the government from officially endorsing or establishing religion. Tuesday’s ruling risks “the kind of entanglement and conflict that” the Constitution’s religion clauses are intended to prevent.

Three mothers from low-income families went to court to challenge the restriction. One of them, Kendra Espinoza, uses the scholarship money to send her two daughters to the Stillwater Christian School in Kalispell, Montana, holding yard sales to help afford the payments.

She said she believes so strongly in the Christian school her daughters attend that she works two jobs to afford the private school tuition.

“I chose that school because of the Christian-based education. It comes with a lot more of the values that I want to teach my children,” she told NBC News. “If the scholarships are available, why should we be denied as opposed to another family that chooses a different school for their children?”

Montana said the disputed provision of its state Constitution was revised in 1972, based on a concern that diverting funds from public schools would tend to weaken the system in favor of schools established for private or religious purposes.

The legal battle required the court to strike a balance between the desire of a state to keep government out of religion and the claims of residents that religious faith should not freeze them out of state programs intended to help everyone.

The mothers had argued that a decision by the Supreme Court three years ago was heavily in their favor. It said Missouri was wrong to exclude a Lutheran church from a state program intended to help nonprofits cover their gravel playgrounds with a safer rubber surface.

The Supreme Court has never drawn a bright line between acceptable and prohibited public aid for religious programs. In the Missouri playground case, it was careful to say the ruling was only about playgrounds, not broader support to the church’s religious mission.

In a 2004 ruling, the court upheld a program in Washington that awarded college scholarships to students who attended religious schools, as long as they were not preparing to become members of the clergy.

Pete Williams

Pete Williams is an NBC News correspondent who covers the Justice Department and the Supreme Court, based in Washington.



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