On June 30, 2020, the United States Supreme Court struck down a broadly-worded and strictly-enforced “no-aid” provision of Montana’s constitution, interpreted to prohibit aid to religious schools. Espinoza v Montana Dept of Revenue, 591 US ___ (2020).

Espinoza arose from a Montana statute that provided tuition assistance to parents who chose to send their children to nonpublic schools, regardless whether those schools were affiliated with or operated by churches.  The Montana Supreme Court held the statute violated the “no-aid” provision of Montana’s constitution because it allowed state aid to schools controlled by a “church, sect, or denomination.”  The US Supreme Court reversed, holding that Montana’s “no-aid” provision, interpreted in this fashion, violated the Free Exercise Clause of the United States Constitution.

The Court, following Trinity Lutheran Church of Columbia, Inc. v Comer, 582 US ___ (2017), which we summarized here, held the Free Exercise Clause protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status.  Such laws are subject to strict scrutiny and are unconstitutional unless they advance state interests of the highest order and are narrowly tailored in pursuit of those interests.  The interests asserted by Montana – promoting public education and religious freedom from governmental intrusion – did not pass the strict scrutiny test.  Summarizing, the Court noted states were not required to subsidize private education; but, if they did, they could not discriminate against private religious schools.

Michigan’s constitution, similar to Montana’s, has a broadly-worded and strictly-enforced “parochaid” provision prohibiting state aid to nonpublic schools.  Const 1963, art 8, § 2.  Espinoza does not affect Michigan’s “parochaid” provision, per se, unless the State provides assistance to private schools and attempts to distinguish between secular and religious schools.