Chief Justice John Roberts again jumped the aisle, siding with the Supreme Court’s conservatives in a landmark decision issued Tuesday, striking down a Montana law preventing taxpayer-funded scholarship money from going to the state’s religious schools.
Roberts authored the opinion in the court’s school choice case, Espinoza v. Montana Department of Revenue, backing a Montana “tax-credit scholarship program” that gave families $150 in state tax credits if they chose to donate to a scholarship program to help other families afford to attend religious or private schools.
“The state’s revenue department made a rule banning those tax-credit scholarships from going to religious schools before the state’s supreme court later struck down the entire program,” Fox News reports.
“Under the program, a family receiving a scholarship originally could use it at any “qualified education provider,” which the court’s opinion noted means ‘any private school that meets certain accreditation, testing, and safety requirements,'” the outlet noted. “The Montana Department of Revenue, citing the state constitution, then changed the definition of ‘qualified education provider’ to exclude those ‘owned or controlled in whole or in part by any church, religious sect, or denomination.’ This was over the objection of the state attorney general.”
Roberts called the state’s decision to exempt donations to religious schools a “discrimination” in violation of the Constitution’s guarantees of Free Exercise.
“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,” the Chief Justice wrote, according to Fox. Consequently, he added, the Montana rule “bars religious schools from public benefits solely because of the religious character of the schools” — a violation of Constitutional protections.
The tax credit, Justice Roberts added, did not violate the Constitution’s Establishment Clause because, as the Supreme Court has said repeatedly, the protection is “not offended when religious observers and organizations benefit from neutral government programs.”
Justice Stephen Breyer, writing the dissent for the court’s four left-leaning justices, disagreed, claiming that the law created “entanglement and conflict” “over where to draw the line between allowing the free exercise of religion while protecting against government endorsement of religion, both of which are required under the Constitution,” KELO reported.
Robert’s position in the Montana case comes as a surprise to many court observers, who noted Monday that Roberts sided with the court’s four liberal justices on a landmark abortion decision, issued Monday, striking down a Louisiana law requiring doctors performing abortions at independent abortion clinics to have admitting privileges at a local hospital.
The decision left many conservatives particularly concerned that Roberts is moving to the position of “swing vote,” replacing Justice Anthony Kennedy and Justice Sandra Day O’Connor before him as the court’s “unpredictable” justice.
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