1 In the Supreme Court of the United States Kendra Espinoza, Jeri Ellen Anderson and Jamie Schaefer, Petitioners v. Montana Department of Revenue, et al., Respondents. BRIEF AMICUS CURIAE OF KEVIN MOORE IN SUPPORT OF RESPONDENTS (i) QUESTION PRESENTED Whether the Montana state law (Rule 1) that allows for funding of education while prohibiting the funding for sectarian schools violates the Equal Protection clause of the Constitution. Whether the indirect public fund use is in violation Establishment clause of the the United States Constitution. Whether the Montana tax-credit scholarship program is constitutional without Rule 1 (the barring of funds towards religious schools). Whether the restriction of money donated to a scholarship fund prohibit the free exercise of a persons religion. Whether a state government can carry out an action it is legally allowed to do for discriminatory purposes. 2 (ii) TABLE OF CONTENTS Question Presented .....i Table of Contents .....ii Table of Authorities ....iii Identity and Interest of Amicus Curiae ....iv Background .....v Argument .....vi A. Why Locke should serve as the basis for this case B . Why the standards set in Trinity do not apply to this case C. Why the Court should use intermediate scrutiny D. Why there was no violation of Equal Protection or Free Exercise clauses E. Lemon Test Application F. Historical precedent Conclusion .....vii (iii) TABLE OF AUTHORITIES Cases Cutter v. Wilkinson, 544 U.S. 709 (2005).....A Locke v. Davey , 540 U. S. 712..... A Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U.S.....B E verson v. Board of Ed. of Ewing , 330 U. S. 1, 16 (1947).....B Lemon v. Kurtzman , 403 U.S. 602.....E 3 (iv) IDENTITY AND INTEREST OF AMICUS CURIAE The Establishment clause of the First Amendment has been embedded in the Constitution since the birth of the United States. It prohibits the government from creating any law “respecting an establishment of religion.” It is there to make sure the government is not advancing a particular religious agenda. The outline for what falls under this clause this is carved out in Locke v. Davey 540 U. S. 712, a similar case decided by the Supreme Court. Locke established that the State has the right to choose not to fund a “distinct category of instruction,” in that case being theology. In using the state funds for a religious school in Espinoza , the state is indirectly funding the advancement of a particular religion, Rule 1 only prohibits them not to fund schools under that category. The precedent this case set was brushed over and dismissed in the Court opinion. This case would provide further clarification to where and when the government can use indirect public funds in dealing with religious institutions, which has lasting potential for setting precedent beyond the specifics of this case. This would provide a clear line in the sand for private scholarship funds, and the lawfulness of state programs of this nature. It also works to limit or expand the power of the Equal Protection Clause when it comes to educational funding generally, effecting state laws throughout the country. The Montana Supreme Court case: Chambers v. School Dist. No. 10 , 155 Mont. 422, 438, 472 P. 2d 1013, 1021 (1970) that allows for “some” school aid to be used for religious ends would be clarified. Determining the constitutionality of this tax-credit program at the federal level would prevent any programs of the same intent appearing in the future nationwide. The interest for this amicae curiae is preserving the separation of church and state, which the Supreme Court ruling erodes in this case. Background The petitioners in this case are low-income mothers who applied for scholarships to keep their children enrolled in a Christian school in Montana. Previously, the Montana legislature had created a program giving tax credits to individuals and businesses who donated to private 4 scholarship organizations. After this program was enacted, the Montana Department of revenue created a provision (Rule 1), which prohibited any of these scholarship recipients from using the scholarship at religious schools. The Montana’s constitution’s “Blaine Amendment” Mont. Const. , Art. X, §6(1) which states “The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.” is clearly being violated by the states tax credit scholarship program and the petitioners don’t dispute that. The question for the US Supreme Court is whether or not this is in violation of the Free Exercise clause. Montana remains free to deny state assistance to all private schools alike. It cannot however do so on the basis of a state law that requires discrimination on the basis of religion, and thereby leads to the invalidation of tax credit programs that do not themselves discriminate in this way. There is no individual discrimination going on in this case. The invalidation of the entire program is a neutral policy as it invalidated the program giving funds to private secular schools and private religious schools. ARGUMENT In Espinoza v. Montana Department of Revenue, 591 U.S. (2020), Chief Justice Roberts, writing for the majority, wrongly concludes the Montana’s no aid provision expressly discriminates against religion in violation of the Free Exercise Clause. It clearly states in the Montana constitution “Aid prohibited to sectarian schools. . . . The legislature, counties, cities, 5 towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university,” The funds are being allocated here by Espinoza and the other parents to the institution of their choice. The tax-credit scholarship program is unconstitutional without Rule (1). A. If we look to a previous case, Locke v. Davey , 540 U. S. 712, a line is drawn where school funds provided by the state can and cannot be used. Chief Justice William Rehnquist in the majority opinion states: “The State has merely chosen not to fund a distinct category of instruction," Similarly the Washington Constitution - which explicitly prohibits state money from going to religious instruction - does not violate the free exercise clause.” The Religion clauses of the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Rule 1 prohibiting use of funds on religious schools is not prohibiting anyones free exercise. The plaintiffs can still choose to attend those schools, just not with government funds. This falls in violation of the establishment clause, by using indirectly using state funds to finance education at a religious institution, it is establishing a state endorsed religion. There is a “historic and substantial” state interest in not funding the training of clergy, as there was in Locke , making it the most analogous case to this one. It can be reasonably assumed that a substantial portion of the students at the religious school have an interest in joining organized religion at a high level, being clergy or ministry. “opposition to . . . funding ‘to support church leaders’ lay at the historic core of the Religion Clauses,” The Court deciding in Locke there is a “historic and substantial” tradition dating back to the founding era of not supporting church leaders or the clergy in any public monetary way. Most state Constitutions of 6 that era prohibited an expenditure of tax dollars to support the clergy, illustrating their desire to keep church and state as separate as possible. If we look to precedent set in Cutter v. Wilkinson, 544 US 709 “ the free exercise rights of taxpayers, denying them the chance to decide for themselves whether and how to fund religion...” this ruling is diametrically opposed to that standard. The taxpayer in this case is not being given a choice whether to fund this tax-credit scholarship program providing these credits to private scholarship organizations, who then in turn fund religious education. This is in denial of their Free Exercise clause by not giving taxpayers the choice for indirectly or directly funding Christian school education. B . The Supreme Court used Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S , as the basis for their decision, as well as Everson v. Board of Ed. of Ewing , 330 U. S. 1, 16 (1947) which concluded “ A State cannot exclude individual Catholics, Lutherans, Mohammed- ans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” The problem with this is that Rule 1 does not prevent individuals from receiving the funds on a religious basis, it simply prevents the funds being used at religious institutions. By ending the tax-credit program in its entirety due to funding being put towards religious schools it is showing neutrality towards all faiths. This also rebukes the “based on religious identity,” argument presented in Trinity Lutheran , individual religious identity was never considered when delivering funds, rather what they school they were used on. The ramifications of this include the federal toleration of states setting up loopholes to indirectly fund churches through use of of a private third party organization, creating a dangerous slippery slope. Every case the court cites has exceptional circumstances behind its public fund use, unlike Espinoza . The coercion aspect 7 Trinity Lutheran was based on is absent in the case here, it was a direct choice between the church having to abandon its religious faith or abandon getting the government funds. That is not the case here, the State court held that Montana wouldn’t have known whether the money was going towards a religious school or not. There would not be a tax credit either way according to the state courts ruling and the striking down of the entire tax-credit program. The other significant difference in this case is that in Trinity the government refused to give money to a church for a non-religious purpose on the sole basis that it was a church, in Espinoza the scholarship money is being specifically given to the schools to fund religious education for the student, enhancing the entanglement of the government program and religion for this case. C. This case should be subject to intermediate scrutiny, since it deals with state funding and tax- credits, making it fundamentally a monetary issue. This would make it an important state interest, but not a fundamental issue about rights. D. There was no violation of the Equal Protection or Free Exercise clauses as the Petitioners claim. Even though the petitioners claimed it violated their Free Exercise of religion, it simply restricted scholarship funds being sent to a particular school, as many other private scholarships limit as well for separate purposes. On merits this isn’t a prohibition of Free Exercise, there is no discrimination based on “status” as the petitioners alleged . Giving a tax credit would be an indirect appropriation of public funds, which Montana’s constitution explicitly prohibits. Article 5 of the Montana Constitution states “No appropriation shall be made for religious, charitable, industrial, educational, or benevolent purposes to any private individual, private association, or private corporation not under control of the state.” Under this umbrella rule no private school would be able to receive funds, including religious ones. 8 E. A monumental case the Court failed to consider was Lemon v. Kurtzman , 403 U.S. 602. If we apply the Three-Pronged Test established in Lemon to this case, it does not pass. The test is spelled out as “(1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state.” Starting at (1) the primary purpose of the tax credit scholarship program to the state was indeed secular, hoping to target low income families and help them pay for private schools through scholarships, devoid of any primary religious intention for the funds. Moving on to (2) is where Espinoza runs into trouble Without Rule 1, the state is indirectly funding and therefore promoting religious education. It is also not prohibiting religion in any fashion, as the option is not taken away from the mother to send their child to the religious institution, they would just be unable to use the program funds for it. Thus, the test does not hold here, prohibiting the governments assistance indirectly of religion in this case when applying the Lemon standard. If we finally take a look at (3) A monetary entanglement between church and state by the application of funds from the states tax-credit scholarship program would occur. The nature of blanket funding religious education for a significant amount of low income families would be by any means be considered excessive. F. James Madison during the founding era lobbied heavily for the Free Exercise clause, and to stop states from establishing religions and using public funds to support them. It is non- discriminatory because you can believe in the founding principle of separation of church and state without being discriminatory towards religion. Justice Sotomayor points this out in his oral argument. It has also been a long standing tradition since the second half of the 19th century that the state could not support religious schools. More than 30 states, Montana included adopted no- 9 aid provisions in this time frame. This implies that from the early days of America this was not an accepted practice, with it finally being codified in the Civil War era. Not only that, but Congress nearly passed a proposal in the 1870s prohibiting states entirely from directly or indirectly funding secular schools, similar to the no-aid provision ( Blaine Amendment, 1869-1877). Thomas Jefferson explained his understanding of the First Amendment’s religion clauses as follows "the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall between church and State.” The tax-credit program without Rule 1 would erode this longstanding wall between church and state ( Jefferson’s letter to Danbury Baptist Association, 1802 ). In Virginia, James Madison objected to a bill that provided special support to churches and clergy, citing they were “violating equality by subjecting some to peculiar burdens” ( Virginia Assessment Bill 8-9 ). This evidence provides us with clear insight into what prominent Founder’s intentions were when the Constitution was drafted. CONCLUSION The Supreme Court should reevaluate their ruling and use Locke as the basis for their decision.