An Under-The-Radar SCOTUS Case Could Obliterate The Line Between Church And State

Nearly a third of the schools that participated in a Montana education tax credit program at the center of a controversial Supreme Court case maintain explicitly anti-LGBTQ policies, according to a HuffPost analysis. 

The program at the center of Espinoza v. Montana Department of Revenue, which the Supreme Court is hearing later this month, provided tax credits to individuals and corporations that donated to private school scholarship groups. However, because Montana has a constitutional provision barring public dollars for religious schools ― and nearly all of the schools participating in the program were religious ― the Montana Supreme Court found the program unconstitutional and shut the program down in 2018.

Now, after the plaintiffs appealed, the case is before the Supreme Court, with public school advocates worrying the conservative-leaning court could call into question whether states are allowed to bar public funding for religious entities. But the issue isn’t just one of church and state or education funding, it is also about public dollars going to institutions with discriminatory practices, they say.  

A previous HuffPost investigation found that at least 14% of private religious schools around the country that receive public funding through programs like the one in Montana actively discriminate against LGBTQ staff and employees. In the Montana tax credit program, these numbers were even higher. 

Anti-LGBTQ Policies On The Books

Of the 13 schools that had signed up to participate in the Montana tax credit program as of 2018, when the program was shut down, four have anti-LGBTQ policies. One of these schools, Stillwater Christian School, is attended by the children of the plaintiffs in the case, who say they would benefit from the program.  

  • Stillwater Christian School in Kalispell, Montana, says in its handbook that “God wonderfully and immutably creates each person as male or female” and “God created marriage to be exclusively the union of one man and one woman.” It also says that “students and campus visitors must use restrooms, locker rooms, and changing facilities conforming with their biological sex.”

  • Foothills Community Christian School in Great Falls, Montana, puts “homosexual and lesbian behavior” and “bisexual conduct” in the same category as “incest” and “bestiality,” saying it is “sinful and offensive to God” in its handbook. It also says that “there is no room for a non-Christian or an uncommitted Christian” to teach at the school and encourages employees to become “a born-again Christian” not only for their sake but “for the sake of your children.”

  • Helena Christian School in East Helena, Montana, says on its statement of faith it believes that “God intends sexual intimacy to occur only between a man and a woman who are married to each other” and “immutably created each person as either male or female in conformity with their biological sex.” 

  • Heritage Christian School in Bozeman, Montana, says in its handbook it reserves the right to reject students based on “sexual conduct (including but not limited to sexual activity outside of marriage, lesbian, gay, bisexual and/or transgender conduct).” In its employment application, applicants also have to affirm that they have not and will not engage in such behaviors. 

Three of the schools that participated in the program also advertise using curriculum from the Christian textbook companies Abeka or Bob Jones University. A previous HuffPost analysis of these textbooks found that their social studies textbooks consistently teach distorted, whitewashed versions of history, and their science textbooks sometimes flout widely accepted facts. One Abeka history textbook previously analyzed by HuffPost, for example, says that Satan hatched “the ideas of evolution, socialism, Marxist-socialism (communism), progressive education, and modern psychology.” A Bob Jones University history textbook calls science a “false religion” and portrays Islam as a violent religion, including a section titled “Islam and Murder.” Both companies’ textbooks dismiss evolution in favor of creationism.

Blurring The Line Between Church And State 

In general, the case has the ability to greatly expand private school choice and the amount of tax dollars flowing to private religious schools. Currently, more than half the states have some form of private school choice program, including voucher or tax credit schemes.

Proponents of private school choice argue that these programs are a way to help lower-income students gain the same options as more affluent ones, by helping them to attend a private school if they choose to, or to at least offer options outside of their zoned public school. The plaintiff this case is named for, Kendra Espinoza, struggled to send her children to Stillwater Christian School and looked forward to some financial help. 

“Ultimately, Montana residents with extremely limited educational options are being denied the ability to provide a better education for their children due to this perhaps well-meaning but misguided interpretation of the First Amendment,” argues EdChoice, a group that pushes school choice, in a friend-of-the-court brief.

On the other side of the aisle, public school advocates say these programs blur the separation of church and state, drain resources from public schools and contribute to the privatization of public education. 

This has the potential to nullify three-fourths of states’ religious freedoms protections. It could force taxpayers to fund discrimination,” said Rachel Laser, executive director of Americans United for Separation of Church and State. “It’s very concerning to divert public funds to private religious schools. We all know our public schools are already hurting across the country.”

This case comes on the heels of another Supreme Court case in 2017 that also concerned public funding for religious entities, Trinity Lutheran Church v. Comer. In that case, the Supreme Court ruled that Missouri could not exclude churches from a general state program that provided funds to fix up playgrounds solely because they are religious institutions. In Montana, though, the state did not single out religious schools in the program but rather chose to shut down the entire program.

If the Supreme Court does rule in Espinoza’s favor, it would constitute a major win for U.S. Secretary of Education Betsy DeVos. DeVos has spent her career fighting for expanded access to tax credit and voucher programs. In February 2019, she helped legislators introduce a bill that would create a federal school choice program, though it has yet to gain any momentum. 

Religious schools, in general, are not subject to the same anti-discrimination policies as public schools and are thus allowed to exclude students and employees based on sexual orientation or on religious grounds. Only one school voucher program in the country, in Maryland, forbids participating schools from discriminating based on sexual orientation.

Public school groups have not been shy about sounding the alarm on this case, predicting that it could have a devastating effect on education and play a major role in disintegrating the U.S. doctrine of the separation of church and state. 

It would turn [the separation of church and state] on its head,” said Randi Weingarten, president of the American Federation of Teachers, on a conference call with reporters. “It will basically change over 200 years of practice in the United States.”

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