(OPINION) May a state create a benefit that’s available to the general public, but then impose conditions on it that discriminate based on the religious status of the recipients?

That was the question before the Supreme Court recently as it heard arguments in Espinoza v. Montana Department of Revenue. The case involves a decision by the Montana Supreme Court that found a tax-credit scholarship program in violation of the state constitution’s ban on aid to religious schools.

The debate centered on whether the Montana Supreme Court failed to properly apply the U.S. Constitution’s Free Exercise clause when it decided against a mother (Kendra Espinoza) who challenged the state’s exclusion of religious schools from its tax-credit scholarship program. An administrative agency created the exclusion to reconcile it with the state constitution’s ban on aid to religious schools that was originally enacted in 1889.

Anti-Catholic animus was rife then, and shortly before that, U.S. Senator James Blaine tried to pass a similar amendment to the federal constitution. Montana reaffirmed its no-aid provision in 1972 that prohibits “aid” from going to “any school … controlled in whole or in part by any church, sect, or denomination.”

After Montana created its program in 2015 allowing donors to the scholarship program to receive a $150 tax credit, it then found the program violated the “no aid” provision and implemented an administrative rule to exclude religious schools. Ms. Espinoza sued because her children were not able to use scholarships from an organization that participated in the state tax-credit program at Stillwater Academy, a Christian school.

The attorney for Ms. Espinoza, Richard Komer of the Institute for Justice, opened by referencing the Supreme Court’s 2017 Trinity Lutheran v. Comer decision requiring Missouri to demonstrate religious neutrality in the administration of a generally available public benefit (funds for school playground improvements). He argued that Montana could not remedy its unconstitutional religious discrimination by abolishing the entire program as the state’s supreme court had ordered. The Deputy Solicitor General of the United States, Jeffrey B. Wall, chimed in that Montana could not “wash away” their mistake by leaving everyone “empty-handed.”

The Deputy Solicitor General then pointed out that if Montana cancelled a similar tax-credit program that had forbidden students from using scholarships at historically African-American schools or all-girls schools, the cancellation would not “cure” the Equal Protection violation. Justice Samuel Alito reinforced this point by referencing the Court’s holding in Arlington Heights v. Metropolitan Housing Development Corp. that a state government’s unconstitutional discriminatory rationale can be fatal to otherwise permissible state action.

In an exchange with Justice Brett Kavanaugh, Montana’s attorney, Adam Unikowsky, conceded the existence of “grotesque” anti-Catholic bigotry in the 1880s, but claimed Montana remedied the animus in 1972 when the constitution was revised.

Unikowsky argued for the religious discrimination in the “no-aid” rule stating that it could avoid imposing a political burden on religious adherents. But as Justice Kavanaugh observed, the religious institution could simply choose not to participate in the optional program.

Justice Elena Kagan also suggested that the “no aid” clause could be justified by reasons not based in animus, including conscientious objections by secular taxpayers or in order to avoid religious division. Yet a religious taxpayer could have a conscientious objection to state funds going towards secular education just as a secular taxpayer could object in the reverse. And, as Chief Justice Roberts pointed out, an argument for avoiding racial division could not justify a policy of segregating swimming pools by race.

Justice Stephen Breyer expressed concern over whether a decision against religious discrimination would open the floodgates for public funding of private religious education. Citing the billion dollar education budgets of states like New York, he asked if these states would "have to give proportionate amounts to parochial schools?" National Public Radio inaccurately reported that the Deputy Solicitor General answered this question positively. In fact, Mr. Wall stated that a city or state could “limit its funding to public schools.”

But, as Justice Alito explained, if and when a state chooses to provide the public with a tax credit program, it needs to follow Trinity Lutheran’s prohibition on religious status discrimination. Montana’s attorney sought to distinguish its discrimination in Espinoza from Trinity Lutheran by arguing that the latter involved denial of a public benefit (by Missouri) for a secular purpose (school playground improvement) while Montana denied a public benefit for religious education. But, the Supreme Court has upheld public funding for religious education, only allowing a state to narrowly exclude the use of public funds for clergy training in Locke v. Davey.

The exclusion of a religious institution from a public benefit for which it is otherwise qualified is “odious to our Constitution," according to Chief Justice Roberts.

As Chief Justice Roberts wrote in Trinity Lutheran, the exclusion of a religious institution from a public benefit for which it is otherwise qualified is “odious to our Constitution. That was true for Missouri’s decision to discriminate on the basis of religious status, and it is true for Montana as well. When a state creates a program for the public benefit, it cannot impose conditions upon the program that treat religious believers like second-class citizens.

Emilie Kao is the director of the DeVos Center for Religion and Civil Society at The Heritage Foundation and an attorney who has defended religious freedom for the last 14 years. She has worked on behalf of victims of religious freedom violations in East Asia, the Middle East, Europe and South Asia at the State Department’s Office of International Religious Freedom and Becket Law. She can be found on Twitter @EmilieTHF.