Many families opt to send their children to private schools, both religious and secular. The State of Montana passed a law to help families afford private school by offering a 1-for-1 tax credit for donations to state scholarship organizations. These organizations provide scholarships for students attending private schools. Under the law, the donations could not be directed toward a specific student or school. Instead, the scholarship organization had discretion over which students to support.

Montana is one of thirty-seven states with a state constitutional provision that prohibits state support of religious education, otherwise known as a Blaine Amendment. After the legislature passed the tax credit supporting families of children in private school, the Montana Department of Revenue interpreted the program to exclude credits where religious schools may potentially benefit, although the private organization, not the state, chose which students would receive scholarships. When religious families challenged Montana’s interpretation, the Montana Supreme Court struck down the tax credit entirely, holding that because the rule would potentially benefit families seeking religious education, it violated Montana’s Blaine Amendment.

Christian Legal Society filed an amicus brief on behalf of itself and a coalition of religious and educational civil liberty organizations arguing that the First Amendment protects the religious choices of private families to send their children to religious schools. In a 5-4 decision authored by Chief Justice Roberts, the U.S. Supreme Court held that the Montana Supreme Court’s termination of the scholarship program violated the Free Exercise Clause.

What principle is CLS fighting for? The government cannot deny generally available benefits to religious families simply because the benefit may incidentally benefit their religious views.