Espinoza v. Montana Department of Revenue

Originally posted on


A scholarship program for low-income Montana students  

Children in Montana have been stripped of their right to participate in a modest scholarship program simply because they attend religious schools.

In 2015 the state legislature passed the Montana Tax Credit Scholarship Program, which allows Montanans a tax credit for $150 of their contributions to a privately-run scholarship program. However, the Montana Department of Revenue refused to implement the program citing the state’s Blaine Amendment, an archaic anti-religious law that forbids tax credits going to schools owned or operated by a “church, sect, or denomination.”

Treating religious school students as second-class citizens 

The Department then created its own rule that limits the use of scholarship funds to children that attend non-religious private schools, leaving religious schools out in the cold. By denying religious schools the ability to participate in a widely available public program, the Montana Department of Revenue stands in defiance of the Supreme Court’s June 2017 decision in Trinity Lutheran v. Comer that ruled religious groups cannot be barred from participation in widely available public programs simply because they are religious.

Institute for Justice, as well as Holland & Hart LLP, represent three low-income Montana mothers who would like to use the program to help send their children to religious private schools.

Becket supports equal treatment of religious schools in public programs 

In January 2018, Becket filed a  friend-of-the-court brief  at the Montana Supreme Court in support of the parents, arguing that religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs.

Oral argument  was held on April 6, 2018 at the Montana Supreme Court, which in December 2018, ruled against the scholarship program. On March 13, 2019, the Montana parents appealed to the U.S. Supreme Court. On June 28, 2019 the Supreme Court agreed to hear the Montana mothers’ case. On September 18, 2019, Becket filed a friend-of-the-court brief arguing that the discriminatory history of the Blaine Amendments renders them unconstitutional, and that religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs. Oral argument is expected to take place early next year.

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools.
  • Dismantling discriminatory state laws: So long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, people of all faiths can face discrimination, simply because they choose to attend a religious school.
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.