SCOTUS watch

Orthodox Jewish groups celebrate Supreme Court ruling on Montana scholarship program

The 5-4 decision allows religious schools to benefit from a scholarship tax credit program

Kjetil Ree

Supreme Court of the United States

Religious schooling advocates are celebrating Tuesday’s Supreme Court ruling on Espinoza v. Montana Department of Revenue, which struck down restrictions on a private school tax credit program in Montana.

In the 5-4 decision, the court ruled that states can not exclude religious schools from scholarship programs that provide a tax credit to contributors. The ruling will likely have broader implications for public funding of parochial schools.

“We believe that this decision represents a great stride in both religious liberty and in American education,” Abba Cohen, the vice president for government affairs and Washington director for Agudath Israel of America, told Jewish Insider. “A great stride in the sense that it will bring greater equity to religion, so that religion will be able to play on the same equitable playing field as non-religious institutions.”

Cohen said Agudath Israel had been involved in the case since it first went to Montana’s State Supreme Court. “The implications [of this case] were so great that it was important to get involved, even at the state level,” Cohen said. In 2019, the organization filed an amicus brief urging the Supreme Court to take up the case. 

The Orthodox Union, which also filed an amicus brief with the court, applauded its ruling. “The Supreme Court has clearly rejected any kind of discrimination based upon the religious ‘status’ of a family, school or student,” Nathan Diament, the Orthodox Union’s executive director for public policy said in a statement. “The high court makes clear that the Free Exercise Clause demands the equal treatment of religious citizens and institutions in government programs.”

In an interview with JI, Diament added: “This is going to be a very powerful tool in the advocacy work that we engage in and in state and local legislatures to expand government support for Jewish schools and other non-public schools.”

Nathan Lewin, a veteran lawyer who has worked extensively on religious liberty issues and argued several cases in front of the Supreme Court, praised the decision, although he added that it could have gone further to entirely overturn Lemon v. Kurtzman, a 1971 ruling that restricted government funding to religious schools.

“[The decision] indicates that there are clearly five votes, and I hope more than five, to go so far in the religious education area that hopefully ultimately Lemon v. Kurtzman will be overruled,” Lewin told JI.

Cohen suggested that the court’s decision is a “tremendous leap forward” for legal and political change on religious education. “I have been working in Washington on the school choice front for 30 years,” he said. “Thirty years ago if you talked about school choice in Washington D.C., you were either run out of town or laughed out of town.”

Progress, Cohen added, “come[s] in winning battles.” Tuesday’s decision, he said, is “not something that’s happened overnight.”

Diament said that, functionally, Tuesday’s decision “overturn[ed] Blaine Amendments on a practical level even if they didn’t do it on a formal explicit level.” Blaine Amendments were a series of late 19th century amendments to state constitutions designed to block public funds from supporting religious schools.

But not everyone in the Jewish community is thrilled with Tuesday’s decision. Rabbi David Saperstein, former U.S. ambassador at large for international religious freedom and director emeritus of the Religious Action Center of Reform Judaism  — which joined an amicus brief in support of the Montana restriction — said the RAC was “disappointed” by the ruling.

“We don’t think that tax dollars ought to be used to support religious activity,” Saperstein told JI. “In general, we feel that creates problems of entanglement. It creates problems of government rules and regulation and monitoring and interference with religion. It’s a link of religion and state that the founders of our country sought to avoid.”

He added, however, that the decision “could have been much worse” had it gone further.

President Donald Trump and Secretary of Education Betsy DeVos have mounted a concerted push in favor of school choice. Trump recently brought up the issue in a press briefing on police reform, calling school choice the “civil rights issue of the year.” 

White House Press Secretary Kayleigh McEnany lauded the Court’s decision in a statement, saying, “The Trump administration believes that school choice is a civil rights issue, and that no parent should be forced to send their child to a failing school.”

Subscribe now to
the Daily Kickoff

The politics and business news you need to stay up to date, delivered each morning in a must-read newsletter.