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Explained: Why Orthodox are cheering Supreme Court’s Espinoza v. Montana ruling

A narrow U.S Supreme Court ruling on Tuesday could open the door for government funding of religious education across the country. While that’s a cause for celebration in some Jewish communities looking to alleviate the high cost of operating schools, other Jewish organizations say the ruling erodes the longstanding separation between church and state.

The backstory

In 2015, Montana’s state government created a scholarship program funded through tax credits that could cover the cost of private schools for low-income students in the state.

But there’s a section of the Montana Constitution known as the “no aid” clause that bans public funding of religious schools in that state. Because of the no aid clause, Montana’s revenue department issued a rule that religious schools could not participate in the program.

The plaintiffs in Espinoza v. Montana are three mothers of scholarship-receiving students at the time the program was ended. They essentially argued that the “no aid” clause violated their rights under the First Amendment in the U.S Constitution, because it hampered their ability to freely practice their religion.

The nation’s highest court — or at least the five justices in its conservative wing – agreed.

“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” Chief Justice John Roberts wrote in the majority opinion.

The consequences of the case extended well beyond the sparsely populated Western state, because similar state constitutional no-aid provisions, often called “Blaine Amendments,” are on the books in 36 other U.S. states.

Whose religious freedom?

The case demonstrates the tension between the two tenets of religious freedom under the First Amendment: The Free Exercise Clause guarantees the right of individuals to practice what they want and how they want, while the Establishment Clause prevents the government from creating or favoring a particular religious practice.

Supporters of Blaine Amendments say the language is effectively a stronger state-level version of the federal Establishment Clause. But proponents of religious schools say that in the process of upholding separation of church and state, the state is penalizing those who want religious education for their families. The conservative justices agreed with the latter argument.

“To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges ‘inevitably deters or discourages the exercise of First Amendment rights,’” Roberts wrote.

Why Orthodox groups are cheering

The Orthodox Union also filed an amicus brief, arguing the court should strike down the no-aid clause. The OU praised Tuesday’s ruling as a win for parents who want more choices for their children’s education and said the clauses enabled officials to essentially discriminate against religious private schools.

“The high court makes clear that the Free Exercise Clause demands the equal treatment of religious citizens and institutions in government programs,” said Nathan Diament, the OU’s executive director for public policy, in a press release.

In a phone interview, Diament explained that the ruling won’t boost the finances of religious schools overnight, but that it will shape the way school-choice proponents engage with public officials.

“It’s a great help to our ongoing advocacy efforts to have state and local governments provide a fair and equitable share of support for our K-12 schools in the Jewish community,” Diament said.

Agudath Israel of America also marked the ruling as a victory, writing in a statement that it “will have a significant positive impact on families choosing to attend religious schools around the country.”

Rabbi Abba Cohen, the Washington Director for Agudath Israel, said the decision “has infused greater equity” in both religious liberty and American education.

Cohen said the push for school choice has been a slow and incremental one. When he first came to the nation’s capital 30 years ago, he said, “If you spoke about school choice in Washington, you were either laughed out of town or run out of town.”

Also within the Orthodox community, groups like the Coalition for Jewish Values and Jewish Coalition for Religious Liberty supported the outcome.

What about the separation of church and state?

With roughly 1,400 Jews in Montana, the state does not have a Jewish school. All but one of the 14 schools that participated in the scholarship program was Christian. Before the decision, a group of rabbis in Montana filed an amicus brief with the court arguing the state was correct to scrap the scholarship program.

“Given the state’s demographics and geography, the Montana Association of Rabbis argued, religious minorities like Jews lack “critical mass” to support their own private schools, placing non-Christians in an “impossible situation.”

“The religious schools supported by the tax-credit program offer an explicitly Christian education that advances religious beliefs that not only are not shared by non-Christians, but also are affirmatively hostile or offensive to minority religious faiths,” the MAOR filing reads.

The religious schools supported by the tax-credit program offer an explicitly Christian education that advances religious beliefs that not only are not shared by non-Christians, but also are affirmatively hostile or offensive to minority religious faiths,” the MAOR brief reads.

Rabbi Ed Stafman of Bozeman, Mont., one of the MAOR rabbis and a candidate for the state legislature, said Tuesday that some in the local Jewish community are concerned that the scholarship program offers public dollars to schools that could use classroom materials that teach disdain toward non-Christians.

“It’s not only what they’re taught,” he said, “it’s also that the kids are less likely here than in other places to ever know a Jewish kid.”

The Religious Action Center of Reform Judaism on Tuesday issued a statement denouncing the court ruling.

“We are deeply disappointed in the Supreme Court’s decision to invalidate Montana’s prohibition on state funding of private religious schools,” Rabbi Jonah Dov Pesner wrote in the press release. “We joined an amicus brief in support of Montana’s prohibition on financial support for religious education, because not only do tuition tax credits and other types of school vouchers divert desperately needed funding from public schools, these programs also violate separation of church and state when such funding is directed towards religious schools.”

Marc Karlinsky is a journalist based in Chicago, where he writes about courts, government and the legal profession. Since 2015, he’s served as the editor of the Chicago Daily Law Bulletin.


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