It looks as if it won't be the last.
The U.S. Supreme Court narrowly upheld Tuesday (June 30) a state tax credit scholarship program that includes religious schools, thereby maintaining its recent support of the right of faith groups to participate in government programs.
When Montana's legislature passed a law in 2015 allowing tiny tax credits for up to $150 in donations to private-school scholarships, the state tax bureau refused to credit any donations to religious schools.
"The Montana Supreme Court's decision does not place a burden on petitioners' religious exercise", she said.
The 5-4 decision, with the conservative justices in the majority and the liberal justices dissenting, was a boost to conservative Christian activists who have fought for years to make state taxpayer funds available for children to attend religious schools in the form of contentious voucher programs.
Two prior cases are critical to this distinction.
The Montana Association of Rabbis argued that the scholarship program violated the Free Exercise clause by using taxpayer money to pay for religious education. Roberts' claim was that Espinoza is equivalent to Trinity Lutheran, not Locke.
In a separate concurring opinion, Justice Samuel Alito pointed to evidence of anti-Catholic bigotry that he said motivated the original adoption of the Montana provision and others like it in the 1800s, although Montana's constitution was redone in 1972 with the provision intact.
"The Department suggests that the no-aid provision safeguards public education by ensuring that government support is not diverted to private schools, but that interest does not justify a no-aid provision that requires only religious private schools to bear its weight", Roberts responded.
The US Supreme Court
Others tracking the Montana case stopped short of predicting a major expansion of state funding for religious education. And if it is paying for religious instruction, wouldn't that run afoul of the First Amendment's establishment clause?
According to him, under a proper interpretation of the clause, "robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level". "But once a state decides to do so, it can not disqualify some private schools exclusively because they are religious", Roberts said.
Thomas' desire that the establishment clause be "dis-incorporated" has always been seen as an eccentricity on the court.
"The Free Exercise Clause "protects religious observers against unequal treatment" and against 'laws that impose special disabilities on the basis of religious status, '" Roberts noted.
"Government funding to religious schools requires taxpayers to support religious institutions and beliefs that may violate their own, something the First Amendment was meant to avoid", continued the RAC.
Roberts echoed that sentiment in the majority opinion, tying the "no aid" provision in the Montana constitution to the era of the Blaine Amendment.
Justices Ruth Bader Ginsburg and Sonia Sotomayor also wrote dissents in which they said the Montana Supreme Court didn't discriminate against religion when it struck down the entire scholarship program. That led the mothers to appeal to the U.S. Supreme Court.
FILE - Kendra Espinoza of Kalispell, Montana stands with her daughters Naomi and Sarah outside the U.S. Supreme Court, January 22, 2020, in Washington.
Another attorney who co-authored a brief supporting the plaintiffs, Becket Fund for Religious Liberty vice president and senior counsel Eric Baxter, predicted the ruling will not result in significant new funds flowing to religious schools.