Espinoza v. Montana Department of Revenue

A scholarship program for low-income Montana students 

Children in Montana have been stripped of their right to participate in a modest scholarship program simply because some of them might attend religious schools.

In 2015 the state legislature passed the Montana Tax Credit Scholarship Program, which allows Montanans a tax credit of up to $150 of contributions to privately-run scholarship programs. However, the Montana Department of Revenue refused to implement the program, and in an ensuing lawsuit, the Montana Supreme Court struck down the program, citing the state’s Blaine Amendment, an archaic anti-religious law that forbids any aid—direct or indirect—from going to schools owned or operated by a “church, sect, or denomination.” Because some scholarships might be used at religious schools, the Montana Supreme Court said no students could have them.

Treating religious school students as second-class citizens

By denying religious schools’ right to participate in a widely available public program, the Montana Supreme Court ignored the Supreme Court’s June 2017 decision in Trinity Lutheran v. Comer that ruled religious groups cannot be barred from participation in widely available public programs simply because they are religious. And the Montana court can’t excuse away the underlying religious bigotry by barring all students the program’s benefit.

Institute for Justice, along with Holland & Hart LLP, represents three low-income Montana mothers who would like to participate in the program by using the scholarships to help send their children to religious private schools.

Becket supports equal treatment of religious schools in public programs

In January 2018, Becket filed a friend-of-the-court brief at the Montana Supreme Court in support of the parents, arguing that religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs and that courts can’t strike down entire benefit programs just to keep religious kids from benefitting from them. Oral argument was held on April 6, 2018, at the Montana Supreme Court, which in December 2018, ruled against the scholarship program, striking down the entire program because some funds would go to kids who chose to use them at religious schools.

On March 13, 2019, the Montana parents appealed to the U.S. Supreme Court and the Supreme Court agreed to hear the Montana mothers’ case. Becket filed a friend-of-the-court brief arguing that the discriminatory history of the Blaine Amendments renders them unconstitutional, and that religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs. Becket’s brief also argued that relying on Blaine Amendments to shut down entire programs only extends the religious bigotry that motivated the enactment. Oral argument took place January 22, 2020. On June 30, 2020, the Supreme Court decided that children in Montana cannot be stripped of their right to participate in a scholarship program simply because they attend religious schools. The Court also recognized that Blaine Amendments are “born of bigotry.” In a concurring opinion, Justice Alito addressed more thoroughly the history of discrimination behind the Blaine Amendments, repeatedly referring to Becket’s brief.  

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools. 
  • Dismantling discriminatory state laws:  So long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, people of all faiths can face discrimination, simply because they choose to attend a religious school. 
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools. 

Freedom From Religion Foundation v. Weber (Big Mountain Jesus)

A mountain memorial to honor fallen soldiers

Since 1954, a statue of Jesus has stood atop a Montana ski slope as a monument to soldiers who died in World War II.

After World War II, soldiers from the Army’s 10th Mountain Division returning to Montana sought to commemorate their fallen comrades with a monument that evoked memories of the shrines and statues they had seen in their battles through the mountains of Europe. To honor these soldiers who had sacrificed so much for their country, the Knights of Columbus (Kalispell Council No. 1328) commissioned the statue of Jesus and applied to the United States Forest Service for a permit to place it on Big Mountain. Since 1954, the statue has stood on a 25’ x 25’ plot of Forest Service land, near the top of Whitefish Mountain Resort—which also leases the plot and the surrounding land from the Forest Service for its ski slopes.

Atheists seek to scrub religion from our history

The Knights’ permit had been renewed every ten years without incident until 2010. Then, the Wisconsin-based FFRF threatened to sue the Forest Service for offending its supposed right to be free from seeing anything religious—even across the country in Montana. The Forest Service, buckling under pressure, initially denied the permit. Amidst the public outcry that followed, it eventually recognized the statue’s historical and cultural significance to the local community. In February 2012, FFRF sued to have the statue permanently removed.

Becket defends “Big Mountain Jesus”

Just after Memorial Day in May 2012, Becket joined the lawsuit to represent the Knights of Columbus and several individuals who had voluntarily maintained the statue for more than sixty years. Becket argued that religious symbols should be treated on fair grounds with other commercial, historical, and cultural symbols that abound on public land.

In June 2013, the district court ruled in Becket’s favor and dismissed the case. FFRF appealed to the Ninth Circuit Court of Appeals, which heard oral argument in July 2015. In August 2015, the Ninth Circuit agreed with Becket that “Big Mountain Jesus” can remain standing.

FFRF’s deadline to appeal the Ninth Circuit’s decision passed in February 2016, protecting the war memorial in place for good.

Importance to religious liberty:

  • Public Square: Because religious exercise is natural to human culture, it has a natural place in the public square. Religious symbols should not be treated as dangerous expression, scrubbed from society. Instead, the government can and should recognize the important role of religion in our history and culture.

For the in-depth story, listen to Becket’s Stream of Conscience podcast episode about this case, “Slopes and Statues.”

Big Sky Colony v. Montana Department of Labor and Industry

The Hutterites are a peaceful and industrious people who have lived every aspect of their lives in religious communities for almost 500 years—eating meals in a communal dining hall, educating their children in a communal school, wearing the same homemade clothing, and working together on a communal farm.

All Hutterite members take a vow of poverty, renounce private property, and hold all their possessions in common. They devote all of their time, labor, and energy to the community as an act of service and religious devotion. They also pledge to resolve any disputes among themselves without using secular courts. They have been successfully living by these religious principles for almost 500 years.

In 2009, however, powerful labor unions and construction lobbyists in Montana complained that Hutterites receive a supposed “competitive advantage” because they do not pay wages to their members, and therefore are not required to provide workers’ compensation insurance. In response, the state passed a new law forcing the Hutterites to provide workers’ compensation insurance for their members. The new law would force the community to violate its 500-year-old commitment to holding all possessions in common, working without expectation of compensation, and refusing to assert legal claims against each other.

The new law is also pointless, because the Hutterites already provide expensive, comprehensive medical care to all of their members, regardless of the reason for their illness or injury. Thus, the workers’ compensation requirement does nothing to protect the health of Hutterite workers; it only forces the community to violate its religious beliefs. Unfortunately, because Hutterites shun politics and do not vote, the legislature never consulted them before passing the new law, and was unaware that the law would serve no purpose.

When the colony discovered that they would be forced to violate their religious beliefs, they petitioned the Montana state courts for relief. A district court decided that the law violated the First Amendment because it was “drafted with such care to apply only to Hutterites,” and because it imposed “property rights concepts [that are] forbidden by the fundamental communal living and community of goods doctrine upon which the [community] is founded.” In a sharply divided 5-4 ruling, the Montana Supreme Court reversed that decision.

The Hutterites then asked Becket to appeal their case to the U.S. Supreme Court in 2013. The Supreme Court declined to hear the case, but Becket ultimately helped the Hutterites work out a solution with the Montana legislature. Today, the Hutterites continue to live in accordance with their religious beliefs without legal persecution.