The Wrong Choice to Address School Choice: Espinoza v. Montana Department of Revenue

For many school-choice advocates, Espinoza v. Montana Department of Revenue is the chance to extend the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer in 2017. In Trinity Lutheran, the Supreme Court held that a state’s exclusion of a church from a public benefit program to resurface playgrounds discriminated against religion in violation of the Free Exercise Clause. Many school-choice proponents hope to extend the Trinity Lutheran holding from playgrounds materials to school funding and thus strike down religion-based exclusions in school voucher programs. However, Espinoza is the wrong vehicle to do so. In Espinoza, the Montana Supreme Court struck down a voucher-type tax credit program that provided scholarships, which could be used at any private school, as violating the Montana Constitution’s prohibition on funding religious schools. By striking down the program, the state court eliminated any alleged discrimination. Therefore, the Supreme Court should affirm and decline to extend the non-discrimination principles expressed in Trinity Lutheran to the use of funding for religious education. If the Court ignores the lack of discrimination, as it seems it might, it should in the alternative still affirm the Montana Supreme Court’s decision as consistent with the Trinity Lutheran line of cases and solidify the distinction between discrimination based on religious status and religious use