SCOTA religious rights case out of Montana has roots in Minnesota

Parents challenge exclusion of religious schools from state tuition program

By Marshall H. Tanick
BridgeTower Media Newswires
MINNEAPOLIS, MN — One of the signature cases pending at the U.S. Supreme Court before its current term is scheduled to conclude in a couple of months concerns the use of state funds to pay tuition for students in parochial schools. The case, Espinoza v. Montana Department of Revenue, No. 18-1195, was argued before the high court in mid-January and will be decided before the tribunal adjourns for the summer this June.

Similar other marquee litigation before the justices in the nation’s capital, a trio of cases addressing the rights of LGBTQ employees in the workplace, kicked off the 2019-2020 term. The religious rights case is deeply rooted in Minnesota legislation and jurisprudence.

The convergence this month of major holidays of three of the world’s main religions, Easter for Christians on April 12, the eight-day Jewish celebration of Passover, which ended April 16, and the Muslim holy month of Ramadan, which begins April 23, provides an opportune occasion to review the pending issues in the Espinoza case.


Tuition tiff

The tiff from Montana revolves around a challenge to a state law creating a tax credit program for those who want to donate to a state-run scholarship fund, whose benefits only flow to public school students and exclude those attending non-public schools, including religious ones. It excludes private schools, over 70% of which are religiously affiliated, from being eligible for scholarship funding that is supported by tax-deductible donations.

The case is brought on behalf of parents whose children are enrolled in a private “Christian school,” represented by the Institute for Justice, a national libertarian group that has taken on a number of constitutional challenges with the 8th Circuit and Minnesota, some successful, others not. E.g., Alexis Bailly Vineyard Inc. v. Harrington, F.3d (8th Cir. 2019) (standing to challenge in-state wine products requirement); City of Golden Valley v. Wiebesick, 881 N.W.2d 143 (Minn. 2017) (state protectionist winery law) (inspection of rental properties allowed).

The state’s position is predicated on the “No-Aid Clause” in its state constitution that prohibits direct or indirect aid to religious organizations, a provision similar to ones in 37 other states. Minnesota is one of them, and landmark litigation under that provision in the 1980s, which also reached the high court, provides a foundation for the current case.


Mueller matter

The Minnesota measure is contained in Article XIII Section 2 of the state constitution. It provides that “no... public money or property [may] be appropriated or used for the support of schools or were in the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgator or thought.”

The measure provided the basis for the predecessor constitutional challenge in Mueller v. Allen, 463 U.S. 388 (1983). Unlike the pending Montana case, brought by religious school parents challenging exclusion from a tuition program, the Minnesota matter consisted of a challenge to a tax program that benefited religious schools and other non-public educational institutions their children attended.

The Mueller case arose under a Minnesota statute enacted in 1955 and twice revised in the late 1970s that permitted state taxpayers to claim a deduction for certain expenses incurred by them for “tuition, textbooks, and transportation” of dependents attending elementary or mixed secular schools, not to exceed $500 per student in elementary school and $700 for those in grades 7 through completion of high school. The statute, “Parochial Aid” potentially affected the parents of approximately 91,000 elementary and secondary students attending about 500 private schools in the state, about 95% of them sectarian in nature.

The challenge was brought by a group of Minnesota taxpayers claiming that the measure improperly dispensed financial aid benefits to parents of children attending parochial, religious-oriented schools in violation of the First Amendment religious clauses.

U. S. District Court Robert Renner in St. Paul upheld the statute, deeming it valid on its face and its application. Noting that because the statute was “neutral of its face [and its application] it does not have a primary effect in either advancing or inhibiting religion.” 514 F. Supp. 998, 1003 (1981). The 8th Circuit affirmed, explaining that the statute benefited “a broad class of Minnesota citizens,” not solely those sending children to periocular schools. 676 F.2d 1195, 1205 (1982). Because the 8th Circuit proceeding conflicted with one from the 1st Circuit, deeming a similar measure unconstitutional, the high court took certiorari.

Hearing the case 37 years ago this week, in mid-April, 1983, the high court upheld that Minnesota statute by a narrow 5-4 margin. The majority decision was written by Justice William Rehnquist, at the time an associate justice before his later elevation to chief justice, and protested by four liberal dissenters, who joined behind a minority opinion by Justice Thurgood Marshall.

The majority opinion reasoned that the Minnesota statutory scheme passed muster under both the Freedom of Religion and Establishment clauses of the First Amendment by applying the three-prong standard of Lemon v. Kurtzman, 403 U.S. 602 (1971). Using Lemon as a “helpful” guidance, the five-member majority upheld the measure on several grounds, including the most important one that “the deductions available for educations expenses incurred by all parents, including those whose children attend public schools as well as non-sectarian private schools, and addition to sectarian private schools. By making this a tax benefit available to a broad class of non-religious, as well as religious, school parents. The Minnesota statute does not “confer” any imprimatur of state approval of religion and has a similar effect.

Additionally, by “channeling” [benefits] …through individual parents,” the statute “has reduced” any constitutional detriments, even though periocular schools do benefit from it by encouraging and facilitating tuition payments from parents of students attending those schools. Because there was only “attenuated financial benefits” derived by the schools, which are “ultimately controlled by the private choices of individual parent,” the “neutrally available tax benefits” were constitutionally permissible.

The court pointed to precedent in which it upheld state reimbursement to parents for expenses incurred in transferring their children to private schools in Everson v. Board of Education, 330 U.S. 1 (1947), and the permissibility of loaning text books to parochial students as well as Board of Education v. Allen, 392 U.S. 236 (1968).

The dissenters, joining Justice Marshall’s decision, condemned the Minnesota statute because the “principle of neutrality forbids that the tax deduction at issue here, which subsidizes tuition payments to sectarian schools.” The foursome felt that the type of indirect assistance available to parents for tuition payments is “impermissible” under the constitutional guarantee of separation between secular and religious educational functions.


Two testing

The Montana tuition case is one of three religious rights cases that also were to be decided before this term ended. Shortly before hearing oral arguments in the Montana case, it granted certiorari to two appeals testing the breadth of Federal anti-discrimination laws to religious schools.

Both cases were brought by teachers in Catholic schools in California against their employers for age and disability discrimination after their contracts were not renewed. St. James School v. Biel, No. 19-348 (disability) and Our Lady of Guadalupe School v. Morrisey-Beru, No. 19-267 (age). Both were dismissed by trial judges but reinstated on appeal by the 9th Circuit, a tribunal that, despite a number of new appointees by President Donald Trump, remains one of his judicial bete noires.

The Supreme Court is going to decide whether the “mistrial exceptions” to the discrimination law for institutions and other employers whose jobs involve religious related works, a category that the court left undefined, and lacking a “rigid formula” in a decision written by Chief Justice John Roberts in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 511 (2012).

Observers of the court forecast that, because of its conservative majority, the liberal wing may be without a prayer and the religious rights claimants may prevail in all of the pending cases.


Happy or chagrined

The oral argument before the high court gave hope to the Montana challengers of the tuition exclusion because the conservative members of the court seemed favorable to their claim, and even when a member of the liberal wing, Justice Stephen Breyer, wondered whether the exemption was too broad.

The proponents, however, point to a different solution: the state Supreme Court, in the form of Solomonic Justice, directed that the tuition program be available for both religious and non-religious private schools in order to avoid offending the principle of separation of church and state.

That type of disposition may leave no one happy, a mood that may change once the high court issues its ruling on this case, which is likely to make some parents happy and others, perhaps, chagrined.


Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.