From https://www.scotusblog.com/2020/01/argument-analysis-justices-divided-in-montana-school-choice-case/
Argument analysis: Justices divided in Montana school-choice case
Posted Wed, January 22nd, 2020 2:31 pm by Amy Howe
This morning the Supreme Court heard oral argument in the latest chapter of the battle over the use of public funding for religious schools. Supporters of such funding argue that the government should not be allowed to discriminate against religious families and schools, while opponents warn that requiring the government to allow public funds to be used for religious schools could harm public education. Both of those issues were at the forefront of today’s oral argument, as was the question of whether the lawsuit should continue at all. By the time the justices left the bench, it appeared that the outcome could hinge on the votes of Chief Justice John Roberts and Justice Stephen Breyer.
The issue came to the court in a challenge to a ruling by the Montana Supreme Court that invalidated a tax-credit program on the ground that the scholarships created by the program could be used at religious schools. In 2015, the Montana legislature established the program, which provides a dollar-for-dollar tax credit of up to $150 for individuals and businesses who donate to private scholarship organizations. The organizations then use the donated money to provide scholarships for students who want to attend private schools – which, in Montana, are overwhelmingly religious. But under a rule announced by the Montana Department of Revenue shortly after the program was passed, families could not use the scholarships at religious schools. Doing so, the department explained, would violate the state constitution’s ban on aid for churches and religious schools.
Kendra Espinoza, a single mother of two daughters, and two other Montana mothers went to court to challenge the rule. Explaining that they were “counting on” the scholarship money to able to keep their children in a Christian school in Kalispell, Montana, they argued that the exclusion of religious schools from the program would violate the federal constitution. The Montana Supreme Court rejected that argument, holding that the tax-credit program violated the state constitution because families were allowed to use the scholarships at religious schools. Espinoza asked the U.S. Supreme Court to review that ruling, which the justices agreed last June to do.
Arguing for Espinoza and the other parents challenging their exclusion from the tax-credit program, lawyer Richard Komer told the justices that the question before them was whether the federal constitution allows the “wholesale exclusion” of religious schools from a state scholarship program. The answer, Komer continued, is that it does not.
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