Shortly after Montana created its first tax credit scholarship, Mike Kadas, head of the state’s Department of Revenue, unilaterally declared that scholarships could not be used at religious private schools. Kadas argued the state’s Blaine Amendment, a 19th century relic of Catholic discrimination, barred “direct or indirect” appropriations to religious organizations.

School choice moms struck back with a lawsuit claiming religious discrimination.

“The rule also violates both the state and federal Constitutions because it allows scholarship recipients to attend any private school except religious ones,” Erica Smith, an attorney with the institute, said in a press release at the time. “That’s discrimination against religion.”

Now two years later these moms will have a chance to make their case before the Montana Supreme Court today.

The case may have national implications. To date, cases hinged on whether the use of school voucher programs violated so-called “separation of church and state” requirements in the U.S. and state constitutions. Sixteen years ago the U.S. Supreme Court ruled in Zelman v. Simmons-Harris that vouchers did not violate the U.S. Constitution. Several other state supreme courts have ruled the same.

While choosing a religious school with vouchers, or tax credit scholarships, is constitutional, is it constitutional for states to prohibit parents from choosing religious options only?

The U.S. Supreme Court visited a similar case in 2017, when a private school in Missouri was prohibited from receiving a public grant to fill a playground with recycled rubber material simply because the school was religious. Although the case did not deal directly with school vouchers or tax credit scholarships, the Supreme Court ruled that Missouri violated its responsibility to be neutral with respect for religion when prohibiting religious schools, and only religious schools, from receiving the grant.

Still unsettled is whether states can discriminate against religious school choice options.

“The principle of religious neutrality applies whether the government is enabling schools to resurface their playgrounds or empowering parents to direct their children’s education. Any contrary decision would amount to blatant religious discrimination,” wrote Institute for Justice attorney Tim Keller in a recent commentary.

Win or lose, this case is on a likely path to the U.S. Supreme Court.

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