Missoula students got a look deep into their state’s Constitution on Friday when the Montana Supreme Court heard arguments over giving tax breaks to religious schools.
More than 400 teens from Hellgate and Sentinel high schools, and middle school students from Washington, Lolo and Meadow Hill joined dozens of local lawyers at the University of Montana to watch the oral arguments in Espinoza v. Montana Department of Revenue.
The case involves a 2015 state law allowing tax credits of up to $150 for taxpayers who contributed to a student scholarship organization. The organization could then contribute those funds to private schools, most of which belong to churches or religious institutions.
A Republican majority of the Legislature said in a poll the law was to help families wanting to send their children to religious schools. The law also ordered the state Department of Revenue to make sure it complied with the Montana Constitution in overseeing the tax credit.
However, the Revenue Department issued a rule saying the tax credits could not be used for supporting religious institutions. It based its decision on the Constitution’s Article X, Section 6, which states the Legislature can’t make any direct or indirect appropriation or payment “to aid any church, school, academy, seminary, college, university … controlled in whole or in part by any church, sect or denomination.”
A group of families wanting to use the tax credits to pay for religious schooling in Kalispell sued the state and won in Flathead County District Court. The Revenue Department appealed to the state Supreme Court.
However, the Department of Justice, led by Republican Attorney General Tim Fox, declined to defend the Revenue Department’s rule. So Revenue Department Director Mike Kadas, appointed by Democratic Gov. Steve Bullock, sent his own internal legal staff to the high court to argue the case.
The nonpartisan Supreme Court justices peppered attorneys from both sides with questions about what the law was supposed to do, how different kinds of tax breaks worked, and if constitutional freedom of religion protected churches from state interference, or prevented the state from discriminating against religious schools.
Revenue Department Attorney Dan Whyte got to speak first. He argued the authors of Montana’s 1972 Constitution specifically wrote Article X to keep public tax dollars focused on public schools and to keep the state from imposing control on religious schools through financial help.
Jonathan McDonald of the Montana Quality Education Coalition backed up the state with the observation that the $3 million for the scholarship fund that could help religious schools was kept untouched in the state budget even as the Legislature cut millions of dollars from public education funding.
Defending the parents, William Mercer — former U.S. attorney for Montana —pointed out the state does allow people tax credits for donations paid into a state college scholarship fund, some of which goes to Carroll College, a private, Catholic institution. Many states and the U.S. Supreme Court have upheld similar rules, he said. And the scholarship money would go to parents to make a personal decision, not to religious institutions to support their activity.
Parents’ attorney Richard Comer noted that in Kalispell, the scholarships could go to three religious schools or a fourth, nonsectarian school. He argued the Constitution actually gave clear permission for the state to go beyond public schools and “provide such other educational institutions … as it deems desirable.”
On rebuttal, Whyte countered that the records of the constitutional delegates showed they wanted to prohibit indirect aid to religious institutions, including giving money to third parties (such as tax benefits to parents) that might go to private education programs.
“Montana is more strict,” Whyte said of the comparisons to other states’ rules. “The delegates wanted to take it to another level.”
After the hearing, Chief Justice Mike McGrath and Associate Justices Laurie McKinnon and James Shea took questions from some of the several hundred local teenagers who’d sat through the arguments. Some asked what kind of classes were best for anyone considering a career in law. Others, like Washington Middle School seventh-grader Daniel Wiltse, dug straight into the meat of the debate.
Wiltse wanted to know if the Montana Constitution distinguished between the Legislature appropriating money to religious institutions or allowing indirect contributions that benefited them.
“What are you doing next Tuesday afternoon?” Justice Shea replied. “We might have you come to the conference session.”