The US Supreme Court held Tuesday in Espinoza v. Montana Department of Revenue that the “no aid” provision of the Montana Constitution violates the Free Exercise Clause of the First Amendment, allowing some state funding to go to religious schools.

In 2015, the Montana Legislature created a dollar-for-dollar tax credit program for taxpayers who donated money to a Student Scholarship Organization (SSO). The SSO then awarded scholarships to families who met need-based requirements and whose children attended private schools. However, the Montana Department of Revenue also enacted Rule 1, which prohibited families from using SSO scholarships at religiously affiliated private schools.

The petitioners are families whose children attended or hoped to attend religious private schools with the help of SSO scholarships. They challenged Rule 1 by arguing that the rule discriminated on the basis of religion in violation of the First Amendment. In 2018, the case reached the Montana Supreme Court, which struck down the tax credit program in its entirety. The Montana Supreme Court held that the tax credit program aided schools in violation of Montana’s “no-aid” provision. The Montana Constitution’s “no-aid” provision prohibited any aid from being given to a school controlled by a “church, sect, or denomination.”

The Supreme Court, in a 5 to 4 decision, reversed the Montana Supreme Court’s decision. Chief Justice Roberts wrote:

When the [Montana Supreme] Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. Had the Court recognized that this was, indeed, ‘one of those cases’ in which application of the no-aid provision ‘would violate the Free Exercise Clause,’ the Court would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program.

Roberts further explained that Espinoza falls under the Supreme Court’s previous decision in Trinity Lutheran. Roberts found that “[h]ere too Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools.” Roberts continued to explain that “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 majority opinion was written by Chief Justice Roberts, who was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justices Thomas, Alito, and Gorsuch all filed concurring opinions with Justice Gorsuch joining Justice Thomas’s.  Justices Ginsburg, Breyer, and Sotomayor filed dissenting opinions with Justice Kagan joining Ginsburg and Breyer’s.