No. 18-1195

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 Supreme Court of Montana

__________________

Amici Curiae Brief of Justice and FreedomFund, Institute for Faith and Family, and NorthCarolina School Choice Supporting Petitioners

__________________

Tami Fitzgerald The Institute for Faith and Family9650 Strickland RoadSuite 103-222Raleigh, NC 27615(980) 404-2880tfitzgerald@ncvalues.org

B. Tyler BrooksLaw Office of B. Tyler Brooks, PLLC5540 Centerview Drive, Suite 200Raleigh, NC 27606(919) 377-9546btb@btylerbrookslawyer.com

James L. Hirsen Counsel of Record505 S. Villa Real DriveSuite 208Anaheim Hills, CA 92807(714) 283-8880james@jameshirsen.com

Deborah J. Dewart620 E. Sabiston DriveSwansboro, NC 28584-9674(910) 326-4554debcpalaw@earthlink.net

Counsel for Amici Curiae Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE ARGUMENT . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. THE MONTANA SCHOLARSHIP PROGRAMI S P ERMISSIBL E U N D ER WEL LE S T A B L I S H E D C O N S TI TU T I O N ALPRINCIPLES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Montana Scholarship Program isimplemented by a series of privatechoices—not the state action required for aconstitutional violation. . . . . . . . . . . . . . . . . . 5

B. Economic equivalence is not a subsidy. . . . . . 7

C. The purpose of the Scholarship Program iseducational, not sectarian. . . . . . . . . . . . . . . . 9

II. INCLUSION OF RELIGIOUS SCHOOLS INTHE MONTANA SCHOLARSHIP PROGRAMIS CONSTITUTIONALLY MANDATORY.. . . . 11

A. This Court’s Establishment Clausejurisprudence has shifted from a strict “noaid” position to a flexible standard groundedin nondiscrimination principles. . . . . . . . . . . 12

B. Many states have adopted constitutionallyquestionable “Blaine amendment” provisionsin their state constitutions.. . . . . . . . . . . . . . 22

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C. This Court should apply nondiscriminationprinciples to the Montana ScholarshipProgram. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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TABLE OF AUTHORITIES

CASES

Abington Township School District v. Schempp, 374 U.S. 203 (1963). . . . . . . . . . . . . . . . . . . . . . . . 3

Agostini v. Felton, 521 U.S. 203 (1997). . . . . . . . . . . . . . . . . . . passim

Aguilar v. Felton, 473 U.S. 402 (1985). . . . . . . . . . . . . . . . . . . passim

Am. Atheists, Inc. v. City of Detroit Downtown Dev.Auth., 567 F.3d 278 (6th Cir. 2009). . . . . . . . . . . . . . . . 26

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011). . . . . . . . . . . . . . . . . . . . . . . . 1

Badger Catholic, Inc. v. Washington, 620 F.3d 775 (7th Cir. 2010). . . . . . . . . . . . . . . . 25

Bd. of Educ. v. Allen, 392 U.S. 236 (1968). . . . . . . . . . . . . . . . . . . . . 9, 16

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v.Grumet, 512 U.S. 687 (1994). . . . . . . . . . . . . . . . . . . . . . . 17

Bowen v. Kendrick, 487 U.S. 589 (1988). . . . . . . . . . . . . . . . . . . . . . . 18

Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008). . . . . . . . 14, 25, 26

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Comm. for Public Educ. and Religious Liberty v.Nyquist, 413 U.S. 756 (1973). . . . . . . . . . . . . . 4, 7, 8, 10, 12

Engel v. Vitale, 370 U.S. 421 (1962). . . . . . . . . . . . . . . . . . . . . . . . 3

Espinoza v. Mont. Dep’t of Revenue, 435 P.3d 603 (Mont. 2018) . . . . . . . . . . . . . . . 9, 11

Everson v. Board of Education, 330 U.S. 1 (1947). . . . . . . . . . . . . . . . . 8, 13, 15, 24

Hunt v. McNair, 413 U.S. 734 (1973). . . . . . . . . . . . . . . . . . . . . 9, 16

Kotterman v. Killian, 972 P.2d 606 (1999) . . . . . . . . . . . . . . . . . . . . 9, 23

Lee v. Weisman, 505 U.S. 577 (1992). . . . . . . . . . . . . . . . . . . . . 3, 25

Lemon v. Kurzman, 403 U.S. 602 (1973). . . . . . . . . . . . . . . . . . . passim

Locke v. Davey, 540 U.S. 712 (2004). . . . . . . . . . . . . . 14, 18, 25, 26

Lynch v. Donnelly, 465 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . 12

McCollum v. Bd. of Educ., 333 U.S. 203 (1948). . . . . . . . . . . . . . . . . . . . . . . . 6

Meek v. Pittinger, 421 U.S. 349 (1975). . . . . . . . . . . . . . . . . . . passim

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Mitchell v. Helms, 530 U.S. 793 (2000). . . . . . . . . . . . . . . . . . . passim

Mueller v. Allen, 463 U.S. 388 (1983). . . . . . . . . . . . . . 4, 7, 8, 10, 17

Pierce v. Society of the Sisters, 268 U.S. 510 (1925). . . . . . . . . . . . . . . . . . . . . . . . 3

Santa Fe. Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). . . . . . . . . . . . . . . . . . . . . . . . 3

Sch. Dist. v. Ball, 473 U.S. 373 (1985). . . . . . . . . . . . . . . . . . . passim

State ex rel. Chambers v. School District 10 of DeerLodge County, 472 P.2d 1013 (Mont. 1970) . . . . . . . . . . . . . . . . 24

Stone v. Graham, 449 U.S. 39 (1980). . . . . . . . . . . . . . . . . . . . . . . . . 3

Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017). . . . . . . . . . . . . . . . . . . 1, 21

Trinity Lutheran Church v. Pauley, 788 F.3d 779 (8th Cir. 2015). . . . . . . . . . . . . . . . 25

Van Orden v. Perry, 545 U.S. 677 (2005). . . . . . . . . . . . . . . . . . . . . . . 25

Walz v. Tax Comm’n, 397 U.S. 664 (1970). . . . . . . . . . . . . . . . . . 8, 11, 26

Widmar v. Vincent, 454 U.S. 263 (1981). . . . . . . . . . . . . . . . . . . . . . . 12

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Winn v. Ariz. Christian Sch. Tuition Org., 586 F.3d 649 (9th Cir. 2009). . . . . . . . . . . . . . . 6, 7

Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481 (1986). . . . . . . . . . . . . . . . . . . passim

Wolman v. Walter, 433 U.S. 229 (1977). . . . . . . . . . . 10, 16, 17, 18, 19

Zelman v. Simmons-Harris, 536 U.S. 639 (2002). . . . . . . . . . . . . . . . . . . passim

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993). . . . . . . . . . . . . . . . . . . . . passim

Zorach v. Clauson, 43 U.S. 306 (1952). . . . . . . . . . . . . . . . . . 11, 12, 15

STATUTES

Mont. Code Ann. § 15-30-3101. . . . . . . . . . . . . . . . . . 9

Mont. Code Ann. § 20-5-102. . . . . . . . . . . . . . . . . . . . 3

CONSTITUTIONAL PROVISIONS

Mont. Const. art. X, § 6 . . . . . . . . . . . . . . . . . . . . 3, 23

Mont. Const. art. X, § 6(1) . . . . . . . . . . . . . . . . . . . . . 9

OTHER AUTHORITIES

Mont. Admin. R. 42.4.802 (Rule 1) . . . . . . . . . . . . . 12

William W. Bassett, Changing Perceptions ofPrivate Religious Schools: Public Money andPublic Trust in the Education of Children, 2008BYU L. Rev. 243 (2008) . . . . . . . . . . . . . . . . . 6, 17

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Jonathan D. Boyer, Article: Education Tax Credits:School Choice Initiatives Capable ofSurmounting Blaine Amendments, 43 Colum.J.L. & Soc. Probs. 117 (2009) . . . . . . . . . . . 4, 8, 22

Mark Edward DeForrest, An Overview andEvaluation of State Blaine Amendments:Origins, Scope, and First AmendmentConcerns, 26 Harv. J. L. & Pub. Pol’y 551 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 24, 27

Ryan A. Doringo, Comment: Revival: Toward aFormal Neutrality Approach to EconomicDevelopment Transfers to Religious Institutions,46 Akron L. Rev. 763 (2013) . . . . . . . . . . . . . . . . 21

Developments in the Law: State Action and thePublic/Private Distinction: The State ActionDoctrine and the Establishment Clause, 123Harv. L. Rev. 1278 (2010). . . . . . . . . . . . . . . . . . . 5

Giannella, Religious Liberty, Nonestablishment,and Doctrinal Development, pt. II, 81 Harv. L.Rev. 513 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Douglas Laycock, Comment, Theology Scholarships,The Pledge of Allegiance, and Religious Liberty:Avoiding the Extremes but Missing the Liberty,118 Harv. L. Rev. 155 (2004) . . . . . . . . . . 4, 16, 18

Laycock, Douglas, Why the Supreme Court ChangedIts Mind About Government Aid to ReligiousInstitutions: It’s a Lot More than JustRepublican Appointments, 2008 BYU L. Rev. 275(2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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INTEREST OF AMICUS CURIAE1

Amici curiae, respectfully submit that the decisionof the Montana Supreme Court should be reversed.

Justice and Freedom Fund is a California non-profit, tax-exempt corporation formed on September 24,1998 to preserve and defend the constitutional libertiesguaranteed to American citizens, through education,legal advocacy, and other means. JFF’s founder isJames L. Hirsen, professor of law at Trinity LawSchool and Biola University in Southern California andauthor of New York Times bestseller, Tales from theLeft Coast, and Hollywood Nation. Mr. Hirsen is afrequent media commentator who has taught lawschool courses on constitutional law. Co-counselDeborah J. Dewart is the author of Death of aChristian Nation (2010). JFF has made numerousappearances in this Court as amicus curiae, includingtwo cases relevant to the issues presented here: Ariz.Christian Sch. Tuition Org. v. Winn, 563 U.S. 125(2011) and Trinity Lutheran Church v. Comer, 137S. Ct. 2012 (2017).

1 The parties have consented to the filing of this brief. Amici curiaecertify that no counsel for a party authored this brief in whole orin part and no person or entity, other than amici, their members,or their counsel, has made a monetary contribution to itspreparation or submission.

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Institute for Faith and Family (“IFF”) is a NorthCarolina nonprofit corporation established to preserveand promote faith, family, and freedom by working invarious arenas of public policy to protect constitutionalliberties, including freedom of educational choices andopportunities. See https://iffnc.com.

North Carolina School Choice is an unincorporatedgrassroots organization of parents and individuals whoengage in advocacy on educational issues and seekgreater empowerment of North Carolina families andtaxpayers regarding education. Its membershipincludes parents with children in district, charter,private, online, hybrid, and home schools. It supportseducational freedoms that afford parents a full range ofoptions, including enrollment in religious schools withfinancial assistance via opportunity scholarshipprograms and other taxpayer-saving incentives.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

Montana is not only permitted to include religiousschools in its Scholarship Program—it must includethem. First, it is questionable whether financial aidreaches religious schools as the result of state action, abasic requirement for any constitutional transgression.The entire program rests on private action. It is fundedby the voluntary donations of private citizens to a“Student Scholarship Organization” created by privatecitizens. The family receiving the scholarship selectsthe specific private institution that will receive thefunds. Even under Montana’s stringent stateconstitution, the program—established for educationaland not sectarian purposes—is permissible. Second,

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inclusion of religious schools in the program isconstitutionally mandatory because excluding themconflicts with this Court’s growing trend to applynondiscrimination principles in the allocation ofgenerally available public benefits. Indeed, that trendrenders Mont. Const. art. X, § 6—and similarprovisions in other state constitutions—constitutionallydubious.

ARGUMENT

I. THE MONTANA SCHOLARSHIP PROGRAMI S P E R M I S S I B L E U N D E R W E L LE S T A B L I S H E D C O N S T I T U T I O N A LPRINCIPLES.

Education is compulsory for school-age Montanachildren. Mont. Code Ann. § 20-5-102. But parents mayfulfill that obligation through private school placement.Pierce v. Society of the Sisters, 268 U.S. 510, 535 (1925)(“The child is not the mere creature of the State; thosewho nurture him and direct his destiny have the right,coupled with the high duty, to recognize and preparehim for additional obligations.”). Many are dissatisfiedwith public schools. Religion has been systematicallyexpelled. See, e.g., Engel v. Vitale, 370 U.S. 421 (1962)(prayer); Abington Township School District v.Schempp, 374 U.S. 203 (1963) (Bible reading); Stone v.Graham, 449 U.S. 39 (1980) (Ten Commandments); Leev. Weisman, 505 U.S. 577 (1992) (graduation prayers);Santa Fe. Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)(student-led prayer at athletic events). Whenmandatory school curriculum clashes with faith,parents must either subject their children toobjectionable content or get out of the public schools.

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Evangelical parents face the same dilemma as theirCatholic counterparts years ago, “paying taxes forpublic schools they [cannot] use in good conscience, andalso paying tuition to fund religiously acceptableprivate schools.” Laycock, Douglas, Why the SupremeCourt Changed Its Mind About Government Aid toReligious Institutions: It’s a Lot More than JustRepublican Appointments, 2008 BYU L. Rev. 275, 289(2008).

Families dissatisfied with public education may notbe able to afford the tuition for an education compatiblewith their beliefs. Montana’s program is a permissibleaccommodation that facilitates affordable choice forsuch families. The tax credit is no more than a “roughreturn for the benefits . . . provided to the State” whenparents bear the financial burden of private educationon top of their taxes. Mueller v. Allen, 463 U.S. 388,402 (1983). It provides “partial relief to parents whosupport the public schools they do not use.” Comm. forPublic Educ. and Religious Liberty v. Nyquist, 413 U.S.756, 803 (1973) (Burger, J., dissenting). “At no point inthe financial operation of [the Montana ScholarshipProgram] does the government disburse public funds,so alleged benefits accruing to a religious school restmerely on an abstract notion of indirectness that hasno real boundary.” Boyer, Jonathan D., Education TaxCredits: School Choice Initiatives Capable ofSurmounting Blaine Amendments, 43 Colum. J.L. &Soc. Probs. 117, 146-147 (2009). The connection is fartoo attenuated to be characterized as direct or evenindirect aid.

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A. The Montana Scholarship Program isimplemented by a series of privatechoices—not the state action required for aconstitutional violation.

Absent state action, Montana’s ScholarshipProgram violates neither the federal nor the stateconstitution. Constitutional rights are protected onlyagainst state interference—not private conduct. Inreligion cases, the state action doctrine helps courtsdraw “the crucial dividing line” between protectedprivate conduct and prohibited governmentaction—”the public/private distinction that is enshrinedin the Constitution’s two Religion Clauses.”Developments in the Law: State Action and thePublic/Private Distinction: The State Action Doctrineand the Establishment Clause, 123 Harv. L. Rev. 1278,1284, 1290 (2010). Montana’s program involves a seriesof “numerous private choices, rather than the choice ofa government,” to direct the specific distribution ofbenefits. Mitchell v. Helms, 530 U.S. 793, 810 (2000).

Montana steers clear of Establishment Clause trapsthrough a multi-tiered layering of private choices thattakes the constitutionally mandated “hands off”approach necessary to ensure the absence of stateaction—a prerequisite for any constitutional violation.There is no state action at any critical juncture in thefunding route. First, private citizens form a SchoolScholarship Organization (“SSO”). Next, taxpayers(private citizens) voluntarily donate to SSO’s. Finally,scholarship recipients select the specific schools fortheir children. None of these decision makers are stateactors, and their actions cannot be attributed to the

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state. Funds are wholly directed by private actors—notstate actors. Citizen participation at every stageprotects against coerced financial support of religion.

The process is analogous to proximate causation(tort law). Montana has not given aid to religion byenacting legislation that sets in motion a series ofdisconnected private choices. The state is the “actualcause” of benefits, which would not exist apart from thestatute, but there are too many broken links in thechain for Montana to be the “proximate cause” of theaid. Private parties—taxpayers, SSOs, parents—arethe “superseding intervening independent causes” thatrupture the chain. “[T]he government itself’ is at leastfour times removed from any aid to religiousorganizations.” Winn v. Ariz. Christian Sch. TuitionOrg., 586 F.3d 649, 662 (9th Cir. 2009) (O’Scannlain, J.,dissenting). The program “could just as easily haveresulted in a total dearth of funding for religiousorganizations....” Id.

School aid has sparked legal challenges for decades.McCollum v. Bd. of Educ., 333 U.S. 203 (1948) appearsto have “launch[ed] a nationwide campaign to purgethe religious schools of every penny of public moneyand the public schools of every vestige of religioussentiment.” William W. Bassett, Changing Perceptionsof Private Religious Schools: Public Money and PublicTrust in the Education of Children, 2008 BYU L. Rev.243, 258 (2008). Some cases implicate the services ofpublic employees, but the aid is neverthelesspermissible where it results from private choices:Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 10(1993) (sign language interpreter in Catholic school);

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Agostini v. Felton, 521 U.S. 203 (1997) (remedialeducation for low-income students). Agostiniabandoned the Meek-Ball presumption that placingpublic employees on private school premises willinevitably create state-sponsored indoctrination or asymbolic union between the state and religion. Id. at223; see Meek v. Pittinger, 421 U.S. 349 (1975)(auxiliary services); Sch. Dist. v. Ball, 473 U.S. 373(1985) (teachers in private school classrooms “leased”to the state). Mueller, Witters, Zobrest, and Zelman allrejected Establishment Clause challenges because aidreached religious entities solely by the direction ofprivate individuals—not the state. Zelman implicitlyacknowledged the state action doctrine: “While ourjurisprudence with respect to the constitutionality ofdirect aid programs has ‘changed significantly’ over thepast two decades . . . our jurisprudence with respect totrue private choice programs has remained consistentand unbroken.” Zelman v. Simmons-Harris, 536 U.S.639, 649 (2002).

B. Economic equivalence is not a subsidy.

Although “tax credits and governmentalexpenditures can have similar economic consequences,”they “do not both implicate individual taxpayers insectarian activities.” Winn, 563 U.S. at 141-142. Thetax credit’s economic effect may be comparable toindirect aid (or even direct aid), but the constitutionalanalysis is radically different. Direct aid is state action,while private choice programs are not. In Nyquist, thisCourt acknowledged the relevance of the funding routebut only as one of many factors. Nyquist, 413 U.S. at781. Mueller elevated the importance of this factor.

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Education Tax Credits, 43 Colum. J.L. & Soc. Probs. at126; Mueller, 463 U.S. at 399. Here, Montana’s roleended with the enactment of the tax credit. Havingcrossed that crucial dividing line, state action vanishes.

Allowing taxpayers to initiate the flow of fundsensures that no citizen’s “tax dollars” are forciblydiverted to support religion. All taxpayers arecompelled to support education. Montana’s multi-tieredscheme allows them to channel some of their owneducational “tax dollars.” The program insulates thestate against charges of financing religion andfacilitates compliance with the constitutional purposethat “[n]o tax in any amount, large or small, can belevied to support any religions activities orinstitutions.” Everson v. Board of Education, 330 U.S.1, 16 (1947). Taxpayers direct their own tax dollars,either for public or private education. The creditinvolves no “direct transfer of public monies . . . us[ing]resources exacted from taxpayers as a whole.” Nyquist,413 U.S. at 807 (Rehnquist, J., dissenting).

Montana’s tax credit is analytically similar to a taxexemption. An exemption “is not sponsorship since thegovernment does not transfer part of its revenue tochurches but simply abstains from demanding that thechurch support the state.” Walz v. Tax Comm’n, 397U.S. 664, 675 (1970). Unlike an exemption, wheregovernment passively refrains from assessing a tax, asubsidy “forcibly diverts the income of both believersand nonbelievers. . . .” Walz, 397 U.S. at 690-691(Brennan, J., concurring), quoting Giannella, ReligiousLiberty, Nonestablishment, and Doctrinal Development,pt. II, 81 Harv. L. Rev. 513, 553 (1968). Montana’s

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credit functions much the same way. The state hasneither diverted a penny nor “somehow imposed a taxby declining to collect potential revenue from itscitizens.” Kotterman v. Killian, 972 P.2d 606, 621(1999). Otherwise, courts “would also be forced to rulethat deductions for charitable contributions to privateschools [are] unconstitutional because they too, wouldamount to the laying of a tax.” Id.

Nevertheless, federal and state tax codes direct abroad array of benefits to religious institutions. The$8.2 million implicated in Zelman’s school voucherprogram “pale[d] in comparison to the amount of fundsthat federal, state, and local governments alreadyprovide[d] religious institutions” through income andproperty tax exemptions, charitable deductions, andprograms like the “Hope Tax Credit.” Zelman, 536 U.S.at 665 (O’Connor, J., concurring). The same is true ofMontana’s tax credit.

C. The purpose of the Scholarship Program iseducational, not sectarian.

The purpose of the Montana SSO’s is “to provideparental and student choice in education with privatecontributions through tax replacement programs.”Mont. Code Ann. § 15-30-3101; Espinoza v. Mont. Dep’tof Revenue, 435 P.3d 603, 606 (Mont. 2018). This is nota “sectarian purpose” under Mont. Const. art. X, § 6(1).Its focus is educational, like the many other caseswhere this Court has upheld school aid: Bd. of Educ. v.Allen, 392 U.S. 236, 247 (1968) (“raising national levelsof knowledge, competence, and experience”); Hunt v.McNair, 413 U.S. 734, 741 (1973) (facilities andstructures to give youth the “fullest opportunity to

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learn and to develop their intellectual and mentalcapacities”); Mueller, 463 U.S. at 395 (“[a]n educatedpopulace is essential to the political and economichealth of any community”); Witters v. Wash. Dep’t ofServs. for the Blind, 474 U.S. 481, 485 (1986)(vocational rehabilitation); Zobrest, 509 U.S. at 5 (signlanguage interpreter for deaf students); Agostini, 521U.S. 203 (remedial services to low-income students);Zelman, 536 U.S. at 649 (“providing educationalassistance to poor children in a demonstrably failingpublic school system”).

Even cases striking down school aid (some nowoverruled) have jumped the secular purpose hurdlederived from Lemon v. Kurzman, 403 U.S. 602 (1973): Wolman v. Walter, 433 U.S. 229, 236 (1977) (protectingstudent health and “providing a fertile educationalenvironment”); id. at 262 (Powell, J., concurring inpart) (relieving tax burdens, stimulating public schoolsthrough healthy competition, facilitating high qualityeducation); Nyquist, 413 U.S. at 773 (safe, healthyeducational environment; pluralism and diversity); id.at 796 (educational choices for low-income families);Meek, 421 U.S. 349 (supplemental auxiliary services);Sch. Dist. v. Ball, 473 U.S. at 382 (providing for theeducation of children is a “praiseworthy goal”); Aguilarv. Felton, 473 U.S. 402 (1985) (programs foreducationally deprived children from low-incomefamilies).

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II. INCLUSION OF RELIGIOUS SCHOOLS INTHE MONTANA SCHOLARSHIP PROGRAMIS CONSTITUTIONALLY MANDATORY.

Both Religion Clauses stand guard over religiousliberty. The First Amendment’s Establishment andFree Exercise Clauses work together to help protectreligious freedom, not to prohibit school choiceprograms that help both religious schools and non-religious ones as well. The Establishment Clause limitsgovernment but simultaneously complements the FreeExercise Clause. Taken to extremes and wrenched fromits context, the clause morphs into a sword attackingreligious freedom instead of a shield protecting it. TheMontana Supreme Court admitted that “an overly-broad analysis of Article X, Section 6, could implicatefree exercise concerns.” Espinoza, 435 P.3d at 606.States may grant more protection than the federalConstitution but excluding religious school options doesnothing to protect religion. The Montana SupremeCourt wields its state constitution as a weapon thatstrikes down religious liberty.

Montana wisely designed a multi-layered privatechoice program where only a thin thread connects thestate with private school funding. The ScholarshipProgram reflects the “benevolent neutrality” that“permit[s] religious exercise to exist withoutsponsorship [or] interference.” Walz, 397 U.S. at 669.The program facilitates voluntary religious instructionwithout coercing financial support, thus “follow[ing] thebest of our traditions . . . respect[ing] the religiousnature of our people and accommodat[ing] the publicservice to their spiritual needs.” Zorach v. Clauson, 43

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U.S. 306, 313 (1952). It would be “most bizarre” for thisCourt to “reserve special hostility for those who taketheir religion seriously, who think that their religionshould affect the whole of their lives, or who make themistake of being effective in transmitting their viewsto children.” Mitchell, 530 U.S. at 827-828.

Petitioners challenged the rigid exclusion ofreligious schools from the Scholarship Program (Mont.Admin. R. 42.4.802 (Rule 1)). The Montana SupremeCourt decision, striking the entire program asunconstitutional, conflicts with this Court’s trend toapply nondiscrimination principles in cases thatinvolve the allocation of generally available publicbenefits. Nondiscrimination promotes the “benevolentneutrality” that must characterize all levels ofAmerican government. Rule 1’s exclusion of religiousschools is neither benevolent nor neutral.

A. This Court’s Establishment Clausejurisprudence has shifted from a strict “noaid” position to a flexible standardgrounded in nondiscrimination principles.

Government aid to religion has generated heateddebate over the course of American history. Financialaid in particular has been viewed with suspicion. TheConstitution affirmatively protects religion yet thisCourt once hesitated to approve anything but remote,incidental, indirect, inconsequential benefits. See, e.g.,Lynch v. Donnelly, 465 U.S. 668, 683 (1984); Widmar v.Vincent, 454 U.S. 263, 273-274 (1981); Nyquist, 413U.S. at 771. There is seemingly a pervasive paranoiathat somehow, somewhere, someone mightinadvertently confer a slight benefit on religion. But

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under this Court’s current approach, that anxiety is nolonger warranted.

This nation’s robust protection for religious libertyguards against both government compulsion andinterference. Since absolute separation is neither wisenor feasible, courts have tried to flesh out theappropriate church-state relationship over decades oflitigation. A strict “no-aid” position prevailed after thisCourt inaugurated Lemon’s tripart test in 1974. Thatapproach was slowly replaced by a growing trend toresurrect and strengthen the weak nondiscriminationprinciple evident in earlier cases, particularly Everson,330 U.S. 1. Since its holding in Witters, this Court’sEstablishment Clause jurisprudence has graduallyprogressed from a strict “no aid” stance to a pointwhere “federal constitutional restrictions on fundingreligious institutions have collapsed.” Douglas Laycock,Comment, Theology Scholarships, The Pledge ofAllegiance, and Religious Liberty: Avoiding theExtremes but Missing the Liberty, 118 Harv. L. Rev.155, 156 (2004). This trend has key implications forresolving this case.

Nondiscrimination principles developed mostly inthe context of taxpayer challenges. A strong consensusemerged that the Constitution permitted state funds toreach religious organizations under limitedconditions—most notably, as the result of privatechoices. Cases typically addressed what thegovernment was permitted to do rather than what itwas required to do. The result has been less thansatisfactory. This Court’s “new middle ground [was] topermit most funding but to require hardly any.”

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Laycock, Theology Scholarships, 118 Harv. L. Rev. at161 (emphasis added). While this “maximizesgovernment discretion and judicial deference,” it also“threatens religious liberty” and tends to expandgovernment power over religious institutions. Id. Thisline of authority failed to articulate exactly if or whenthe state must include religious organizations amongother eligible recipients. Locke v. Davey, 540 U.S. 712(2004) may appear to say “no,” but its narrowparameters discourage extending its conclusion toother circumstances.

In light of this Court’s developing jurisprudence,states have crafted programs accordingly. Thescholarship program at issue in Colorado ChristianUniversity reflects such efforts. The state establisheda “safe harbor” to make funds available “as broadly aswas thought permissible under [this] Court’s then-existing Establishment Clause doctrine.” ColoradoChristian University v. Weaver, 534 F.3d 1245, 1251(10th Cir. 2008). Although this Court had scrupulouslyavoided “direct funding of pervasively sectarianinstitutions” in past decisions (id. at 1245), thatapproach was subsequently modified to discard theabsolute prohibition evident in earlier cases. Instead,this Court recognized that the “pervasively sectarian”framework “collides with our decisions that haveprohibited governments from discriminating in thedistribution of public benefits based upon religiousstatus or sincerity.” Id. at 1258, quoting Mitchell, 530U.S. at 828 (plurality).

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Early history (pre-Lemon). Decades ago, thisCourt warned against government hostility to religion.There is “no constitutional requirement which makesit necessary for government to be hostile to religion andto throw its weight against efforts to widen theeffective scope of religious influence.” Zorach, 343 U.S.at 313-314. At that time, this Court began to considerstate programs funding religious and seculareducation. Both “no aid” and nondiscriminationprinciples were evident in Everson, when this Courtupheld state-funded bus rides that included a Catholichigh school. 330 U.S. 1. New Jersey could not excludeindividuals of a particular faith from receiving thebenefits of public welfare legislation (id. at 16),essentially applying a “weak form of thenondiscrimination principle” that “permitted equalfunding, but did not require it.” Laycock, TheologyScholarships, 118 Harv. L. Rev. at 164. At this point,“[f]ew judges took seriously the possibility that equalfunding might be constitutionally required.” Id. But thedecision was far from unanimous. Four dissentingjustices advocated the rigid no aid position that laterprevailed for a long stretch, insisting theEstablishment Clause “broadly forbids state support,financial or other, of religion in any guise, form ordegree. It outlaws all use of public funds for religiouspurposes.” Everson, 330 U.S. at 33 (Rutledge,Frankfurter, Jackson, Burton, J.J., dissenting).

Everson involved bus transportation, a religiouslyneutral benefit that hardly raised establishmentconcerns. A few years later, this Court approved a stateprogram to loan textbooks to children in both publicand parochial schools. Building on Everson, the Court

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found this program did not advance religion, butfurthered educational opportunities. Bd. of Educ. v.Allen, 392 U.S. at 243. Again, a strong dissent objectedto using tax funds “even to the extent of one penny” tosupport religious schools. Id. at 253-254 (Black, J.,dissenting). Following these early decisions, this Court“struggled to reconcile two competing intuitions”—therigid no aid position that prevailed from Lemonthrough the mid-1980's and the nondiscriminationapproach that later won the day. Laycock, Douglas,Why the Supreme Court Changed Its Mind, 2008 BYUL. Rev. at 276.

“No Aid” Era (1971-1985). Lemon ushered in aseries of taxpayer challenges. This era was dominatedby a strict “no aid” policy that struck down many formsof state aid for private religious schools and theirstudents: Lemon, 403 U.S. 602 (private school teachersalaries); Hunt v. McNair, 413 U.S. 734 (state revenuebonds for Baptist college upheld because school was not“pervasively sectarian”); Meek, 421 U.S. 349 (materialsand services); Wolman, 433 U.S. 229 (materials andservices); Sch. Dist. v. Ball, 473 U.S. 373 (enrichmentcourses); Aguilar, 473 U.S. 402 (remedial instructionand guidance services).2 “The no-aid principle derivedfrom eighteenth-century debates over earmarked taxeslevied exclusively for the funding of churches.” Laycock,Why the Supreme Court Changed Its Mind, 2008 BYUL. Rev. at 276. The policy continued to dominate formany reasons, including lingering anti-Catholicsentiment that declined and ultimately faded in the

2 Meek, Wolman, Ball, and Aguilar have been subsequentlyoverruled in whole or in part by Mitchell and/or Agostini.

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1950’s and 1960’s, plus concerns about “white flight” toprivate schools in the face of desegregation mandates.Id. at 285-288. Eventually, a broad Protestant-Catholiccoalition reframed the issue in terms of private choiceand neutrality (id. at 292), but meanwhile, “the no-aidprinciple predominated from then [Lemon] until itshigh-water mark in Aguilar v. Felton in 1985.” Id. at277.

Aguilar and Ball, filed the same day, were both“ideological, strict constructionist attacks on programsthat brought public-school teachers onto the premisesof parochial schools.” Changing Perceptions, 2008 BYUL. Rev. at 259. After these rulings created excessivecosts and chaos, the New York state legislature createda special school district to accommodate the needs ofdisabled children who were denied Title I services ontheir religious school premises. The new school district,carved out along religious lines, raised its ownEstablishment Clause concerns. Id. at 264, discussingBd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,512 U.S. 687 (1994). But in Kiryas Joel, JusticeO’Connor urged the Court “to reconsider Aguilar, inorder to bring our Establishment Clause jurisprudenceback to . . . government impartiality, not animosity,toward religion.” Kiryas Joel, 512 U.S. at 717-718(O’Connor, J., concurring).

Even during the Lemon era, this Court occasionallyapproved financial aid: Meek, 421 U.S. at 359-62(transportation); Wolman, 433 U.S. at 241-244, 244-248(testing and remedial instruction); Mueller, 463 U.S. at394-403 (state tax deductions). In fact, this Court“never squarely repudiated the nondiscrimination

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principle,” resulting in an incoherent body of law andleaving the no-aid position “vulnerable to new Justicesmeasuring neutrality from a different baseline.”Laycock, Theology Scholarships, 118 Harv. L. Rev. at166.

Transition. Beginning with its 1986 unanimousdecision in Witters, “[this] Court progressively elevatedthe nondiscrimination principle while subordinatingthe no-aid principle.” Laycock, Why the Supreme CourtChanged Its Mind, 2008 BYU L. Rev. 275 at 278. Sincethat time, this Court has upheld five additionalprograms allowing funds to reach religious institutions(Bowen v. Kendrick, 487 U.S. 589 (1988), Zobrest,Agostini, Mitchell, Zelman), partially or whollyoverruling several Lemon era rulings (Meek, Wolman,Aguilar, Ball). Id.

Witters has several parallels to Locke v. Davey.Petitioner was a blind student studying to become apastor who applied for assistance under a vocationalrehabilitation program. The State of Washington—where Locke also originated—denied the applicationbased on the state constitution. The WashingtonSupreme Court upheld the denial based on the federalEstablishment Clause and this Court reversed. Wittersis an interesting case in this Court’s transition tonondiscrimination. As in Locke, it involved anindividual denied funding because he sought religioustraining. This Court expressed “no opinion” on whetherthe Free Exercise Clause mandated the vocational aidthe petitioner sought (Witters, 474 U.S. at 489-490) butcited nondiscrimination principles to support its ruling:“Washington’s program is made available generally

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without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited . . . and isin no way skewed towards religion.” Witters, 474 U.S.at 487-488.

In Witters, nondiscrimination won the day in spiteof the Court’s simultaneous confirmation of both “noaid” and nondiscrimination principles. “[T]heEstablishment Clause is not violated every time moneypreviously in the possession of a State is conveyed to areligious institution” but “the State may not grant aidto a religious school, whether cash or in kind, wherethe effect of the aid is that of a direct subsidy to thereligious school from the State”—even if the aid “takesthe form of aid to students or parents.” Id. at 486(internal quotation marks and citations omitted).Amazingly, though, this Court appliednondiscrimination principles to Witters’ claims evenbefore cases like Ball, Aguilar, and Wolman wereoverruled (in part or whole). This Court noted in dictathat “[o]n remand, the state court is of course free toconsider the applicability of the ‘far stricter’ dictates ofthe Washington State Constitution.” Id. at 489.Nevertheless, Witters is an intriguing step towardnondiscrimination. This Montana case is anopportunity for this Court to further sharpen thedoctrine and consider whether “far stricter” stateconstitutions should ever override principles of equalityand nondiscrimination in the distribution of generallyavailable benefits.

Nondiscrimination (1986 forward). The tideeventually turned. This Court began to applynondiscrimination principles to funding cases,

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facilitating greater equality between religiousorganizations and comparable secular entities. Severallandmark cases inaugurated an era where religiousand secular private schools began to enjoy equal accessto funding opportunities, particularly where theservices funded were unrelated to religion or privatechoices directed the funds. In Zobrest, this Courtreversed a ruling that denied sign-language interpreterservices to a deaf student at a Catholic highschool—services required by the Individuals WithDisabilities Educational Act. In 1997, this Courtoverruled Aguilar and Ball, and implicitly overruledMeek, rejecting a taxpayer challenge to a programallowing public school teachers to provide remedialeducation to low-income students in public and privateschools. The program did not define recipients withreference to religion. Agostini, 521 U.S. at 234. Threeyears later, this Court expressly endorsednondiscrimination principles and condemned hostilityto religion when it upheld a federally funded programdistributing equipment to public and private schools ona per-student basis without reference to religion.Mitchell, 530 U.S. at 827-828.

Finally, Zelman upheld a program providing tuitionand tutorial aid based on financial need and residencein a particular school district, explaining that“government programs that neutrally provide benefitsto a broad class of citizens defined without reference toreligion are not readily subject to an EstablishmentClause challenge.” 536 U.S. at 651 (internal citationsand quotation marks omitted). Zelman and other cases“should be understood as evidence of [this] Court’s shiftfrom a focus on effects and perceptions” to “the

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principle that government decisions which do notutilize religion as a standard for action or inaction donot violate the Establishment Clause.” Ryan A.Doringo, Comment: Revival: Toward a FormalNeutrality Approach to Economic DevelopmentTransfers to Religious Institutions, 46 Akron L. Rev.763, 794 (2013).

This case is an opportunity to extend thenondiscrimination principles highlighted in Zobrest,Agostini, Mitchell, and Zelman. Those cases implicatedthe U.S. Constitution, but in Trinity Lutheran thisCourt considered a state provision similar to the one inMontana and struck down a policy that “expresslydiscriminate[d]” against an “otherwise eligiblerecipient[]”—Trinity Lutheran Church—by excludingit from participation in a competitive program toimprove playground safety “solely because of [its]religious character.” Trinity Lutheran, 137 S. Ct. at2021. The church was “not claiming any entitlement toa subsidy” (id. at 2022) but merely the “right toparticipate in a government benefit program withouthaving to disavow its religious character.” Id. ThisCourt did not venture beyond the context of playgroundresurfacing and declined to “address religious uses offunding or other forms of discrimination.” Id. at 2024n. 3. But as Justice Gorsuch observed, the “generalprinciples” that controlled Trinity Lutheran “do notpermit discrimination against religious exercise—whether on the playground or anywhere else.” Id. at2026 (Gorsuch, J., concurring).

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B. Many states have adopted constitutionallyquestionable “Blaine amendment”provisions in their state constitutions.

Many state constitutions rigidly deny financial aidto religion. These provisions are typically rooted innineteenth century anti-Catholic bias, a positionantithetical to the federal Constitution in general andnondiscrimination principles in particular. It is notpossible to maintain a total wall of separation withoutdiscriminating against religion as Blaine amendmentsdo. Such an effect is not what the Framersintended—rather, the state must offer neutralitytoward religion. It should not therefore conduct affairsso as to disfavor religious people or organizations.

Public schools were saturated with Protestantism inthe 1800’s. The unsuccessful federal “BlaineAmendment” was an effort to prevent public funding of“sectarian” schools. Mark Edward DeForrest, AnOverview and Evaluation of State Blaine Amendments:Origins, Scope, and First Amendment Concerns, 26Harv. J. L. & Pub. Pol’y 551, 551-573 (2003). In the latenineteenth century, comparable state amendmentssurfaced “during a period of mass anti-Catholicsentiment in response to Irish-Catholic immigration.”Jonathan D. Boyer, Article: Education Tax Credits:School Choice Initiatives Capable of SurmountingBlaine Amendments, 43 Colum. J.L. & Soc. Probs. 117,118 (2009). The 1889 Enabling Act required new statesto include Blaine provisions in their constitutions inorder to preclude funding for “sectarian” schools.DeForrest, An Overview, 26 Harv. J. L. & Pub. Pol’y551 at 573-574. And it was an “open secret” that

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“sectarian” was “code for Catholic.” Id. at 559 (citingMitchell, 530 U.S. at 828-829). By the close of thenineteenth century, the constitutions of “roughly thirtystates” included Blaine-style amendments. Id. at 573.These provisions increased the likelihood that religiousentities would be denied even the most indirect publicfunding. This is particularly true for schools, wherestrict “no aid” principles reflect “a misinterpretation ofthe Establishment Clause, deeply rooted in historicanti-Catholicism.” Laycock, Theology Scholarships, 118Harv. L. Rev. at 185.

State constitutions and analogous state statuteshave generated lawsuits over the years. The ArizonaSupreme Court, in dicta, “blasted the federal BlaineAmendment bill for its anti-Catholicism” and noted thechallenge in applying comparable state provisionsbecause of the difficulty in “‘divorcing the amendment’slanguage from the insidious discriminatory intent thatprompted it.’” DeForrest, An Overview, 26 Harv. J. L.& Pub. Pol’y 551 at 583-584, quoting Kotterman, 972P.2d at 624.

C. This Court should apply nondiscriminationprinciples to the Montana ScholarshipProgram.

In applying Mont. Const. art. X, § 6 to shut downparental choice in education, Montana uses its stateconstitution as a sword to discriminate against religionrather than a shield to protect it. Although the statehas an interest in maintaining an appropriate church-state distinction, its categorical exclusion of religiousschools from a neutral public benefit cannot withstanda nondiscrimination analysis.

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State Blaine amendments threaten religious libertyby unlawfully discriminating against religion.DeForrest, An Overview, 26 Harv. J. L. & Pub. Pol’y551 at 556. Decades ago, the Montana Supreme Courtdid just that by reading its state constitution toprohibit both direct and indirect aid to religiousschools. State ex rel. Chambers v. School District 10 ofDeer Lodge County, 472 P.2d 1013 (Mont. 1970);DeForrest, An Overview, 26 Harv. J. L. & Pub. Pol’y551 at 586. The court repeated its error in this case byusing state Blaine language to invalidate theScholarship Program. But “[this] Court couldpresumably reverse that judgment on the ground thatthe [Montana] Blaine Amendment, as applied in th[is]case, violated the federal Constitution.” Laycock,Comment, Theology Scholarships, 118 Harv. L. Rev. at190 (2004) (emphasis added).

Nondiscrimination principles promote governmentneutrality by eliminating the threat that religiousentities could be denied generally available governmentservices and benefits dispensed according to neutralcriteria. The Constitution “requires the state to be aneutral in its relations with groups of religiousbelievers and non-believers; it does not require the stateto be their adversary. State power is no more to be usedso as to handicap religions than it is to favor them.”Everson, 330 U.S. at 18 (emphasis added). Montanahas become an adversary by excluding religious schoolsfrom the choices available to families under itsScholarship Program.

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In Trinity Lutheran, this Court considered “whetherthe U.S. Constitution compel[s] Missouri to providepublic grant money directly to a church, contraveninga long-standing state constitutional provision that isnot unique to Missouri.” Trinity Lutheran Church v.Pauley, 788 F.3d 779, 784 (8th Cir. 2015). The shift tonondiscrimination had occurred almost exclusively inchallenges where the question of mandatory inclusionwas not in front of this Court. “Zelman held that astate is entitled to offer school vouchers that can becashed at sectarian schools but not that it is requiredto do so.” Badger Catholic, Inc. v. Washington, 620 F.3d775, 779 (7th Cir. 2010). The Tenth Circuit took thenext logical step. It was “undisputed that federal law[did] not require Colorado to discriminate” against areligious university, but neither could the state “chooseto exclude pervasively sectarian institutions” from theprogram. Colorado Christian University, 534 F.3d at1253.

Facilitating parental choice in education is farremoved from “[t]he coercion that was a hallmark ofhistorical establishments . . . coercion of religiousorthodoxy and of financial support by force of law andthreat of penalty.” Van Orden v. Perry, 545 U.S. 677,693 (2005) (Thomas, J., concurring), citing Lee v.Weisman, 505 U.S. at 640 (Scalia, J., dissenting). Thathistorical threat is what drove the outcome in Locke. Inthat case, this Court allowed a state to discriminateunder extraordinarily narrow circumstances notpresent in this case, citing “play in the joints,” i.e.,“state action that is permitted by the [EstablishmentClause] but not required by the [Free ExerciseClause].” Locke, 540 U.S. at 718. But if read in its

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original context, that phrase does not warrantMontana’s categorical exclusion. The Constitution “willnot tolerate either governmentally established religionor governmental interference with religion.” Walz, 397U.S. at 669. But there is “room for play in the jointsproductive of a benevolent neutrality which will permitreligious exercise to exist without sponsorship andwithout interference.” Id. (emphasis added).Nondiscrimination promotes “benevolent neutrality.”Montana’s rigid exclusion of religious schools is neitherbenevolent nor neutral. Exclusion is the antithesis ofreligious liberty and equal protection. As the SixthCircuit observed in upholding Detroit’s downtownrefurbishing program: “That the program includes,rather than excludes, several churches among its manyother recipients helps ensure neutrality, not threatenit.” Am. Atheists, Inc. v. City of Detroit Downtown Dev.Auth., 567 F.3d 278, 290 (6th Cir. 2009) (internalcitations and quotation marks omitted).

Locke’s relatively minor burdens and mild disfavor,even if “tolerable in service of ‘historical andsubstantial state interest[s],’” do not justify Montana’swholesale exclusion of religious schools from a neutral,generally available scholarship program. ColoradoChristian University, 534 F.3d at 1255-56. Unlike lawsthat singled out religion for benefits not available toothers, Montana withholds a generally available publicbenefit on the sole basis of religion—violating theConstitution as surely as if it had imposed a specialtax.

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Equality is a principle deeply embedded in thenation’s history and constitution. “[A] state cannotshield a Religion Clause violation from judicial scrutinyby hiding the violation behind its own state charter.”DeForrest, An Overview, 26 Harv. J. L. & Pub. Pol’y551 at 607. Discrimination against religion violates theFirst Amendment. If a state enacts a funding programto assist private educational institutions, “it wouldseem that the principle of nondiscrimination requires[it] to extend that aid to organizations [that] identifythemselves as religious.” Id. at 608 (emphasis added).Exclusion of religious organizations merely because oftheir religious character “is not only offensive tofundamental principles of equality of citizenship,liberalism, and distributive justice, but also deeplyoffensive to the Constitution’s guarantee of religiousliberty.” Id. at 613.

CONCLUSION

This Court should reverse the decision of theMontana Supreme Court and establish that religiouspersons and entities—including families andschools—are entitled to equal treatment in thedistribution of generally available public benefits.

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Respectfully submitted,

James L. Hirsen Counsel of Record505 S. Villa Real Drive, Suite 208Anaheim Hills, CA 92807(714) 283-8880james@jameshirsen.com

Deborah J. Dewart620 E. Sabiston DriveSwansboro, NC 28584-9674(910) 326-4554debcpalaw@earthlink.net

Tami Fitzgerald The Institute for Faith and Family9650 Strickland Road, Suite 103-222Raleigh, NC 27615(980) 404-2880tfitzgerald@ncvalues.org

B. Tyler BrooksLaw Office of B. Tyler Brooks, PLLC5540 Centerview Drive, Suite 200Raleigh, NC 27606(919) 377-9546btb@btylerbrookslawyer.com

Counsel for Amici Curiae