Ray Carter | September 24, 2019
Oklahoma Attorney General defends tax-credit scholarship programs
Oklahoma Attorney General Mike Hunter has filed a brief with the U.S. Supreme Court to defend the participation of private religious schools in state tax-credit scholarship programs, arguing that a Montana Supreme Court decision striking down such programs unconstitutionally violated citizens’ First Amendment rights.
Fifteen other state attorneys general and governors joined Hunter in filing the brief.
“The ruling by the Montana Supreme Court discriminates against and punishes parents who choose to send their children to religious schools,” Attorney General Hunter said. “If upheld, it has far-reaching consequences that could threaten school choice programs nationwide, depriving religious, low-income, and disabled children of a quality education of their choice. My colleagues and I encourage the U.S. Supreme Court to reverse this decision for the benefit of the families across the nation who rely on these programs.”
Montana, like Oklahoma and several other states, provides a tax credit to individuals who donate to scholarship-granting organizations. The Montana Supreme Court ruled the program was unconstitutional because a scholarship-granting organization could give scholarships to students who could then use the money to attend private religious schools.
But Hunter’s brief notes prior U.S. Supreme Court rulings require states to demonstrate “a state interest of the highest order” in order to justify a law that discriminates against religion.
“A long line of precedent from this Court makes it abundantly clear that barring all religious participants in a facially neutral program on anti-establishment grounds is not a compelling interest,” Hunter’s brief stated. “Yet that is precisely what the Montana Supreme Court did …”
Montana’s state constitution, like the constitution of Oklahoma and several other states, contains a provision barring state funding, either directly or indirectly, to churches or religious entities. Such provisions are often called “Blaine amendments” because the constitutional language was promoted by politician James G. Blaine in the 1800s during a period of anti-Catholic bigotry.
But Hunter’s brief argues Blaine amendments do not bar the participation of schools in tax-credit scholarship programs based on religion.
“Prohibitions on uses of state funds do not prohibit individuals’ use of tax credits, nor do prohibitions on aiding religious schools prohibit aid to religious students,” the brief stated. “Nine states have found no conflict between their state Blaine Amendments and tax-credit scholarships.”
In 2017, the U.S. Supreme Court overturned a Missouri court ruling in which the Missouri court sided with state officials who denied a church day care access to a Playground Scrap Tire Surface Material Grant Program. That program helped schools pay to resurface playgrounds with recycled tires. Although the Trinity Lutheran Church Learning Center’s application was highly rated based on objective criteria, Missouri officials nonetheless denied the school a grant due to that state’s Blaine amendment.
In a 7-2 decision, the U.S. Supreme Court declared Missouri’s policy “violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.” The court majority found Missouri’s policy “puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.” The court called that “odious to our Constitution.”
The U.S. Supreme Court’s 2017 ruling was noted several times in Hunter’s brief.
“A law violates the First Amendment not only when it directly restricts a religious practice, but also when it denies a public benefit because of religious affiliation,” the brief stated.
In the brief, Hunter stressed that tax-credit scholarship programs are applied without favoritism, noting the credits are available “to any person, regardless of religion,” and that scholarship-granting organizations can then “use those donations to provide tuition scholarships to any child to attend any qualified private school, regardless of religious affiliation.”
Rather than a direct or even direct funding of religious organizations, the brief notes the tax-credit scholarship program involves “three degrees of separation from religion.”
In its ruling, the Montana Supreme Court struck down the entire state tax-credit scholarship program, but Hunter and the other state officials joining him argue that does not resolve the unconstitutional nature of the ruling, and actually creates new problems by violating the U.S. Constitution’s Establishment Clause.
“The current rule in Montana is: any public benefit is available to all, but as soon as the disfavored religious class may benefit, directly or indirectly, the benefit shall be available to no one,” the brief stated. “This rule has no logical stopping point. The State may support soup kitchens—unless the Catholic Church opens a soup kitchen. The State may assist businesses in maintaining their storefront sidewalks—unless any business regularly allows the Salvation Army to seek charity there. The State may provide police, fire, and antiterrorism protection—unless that allows the Synagogue to spend less funds on security and safety measures.”
Taken to its logical outcome, Hunter and other officials argue the Montana ruling severely undermines the constitutional rights of citizens across the nation, saying, “It is hard to imagine a more hostile legal regime than one wherein everything religion touches is tainted as anathema to the state.”
“According to the Montana Supreme Court, faith makes one a pariah as a matter of state constitutional law, whereby participation by religious persons so infects a generally available program that it must be excised entirely,” the brief stated. “The First Amendment does not tolerate such hostility.”
Joining Oklahoma on the brief are the attorneys general of Alabama, Alaska, Arizona, Arkansas, Georgia, Kansas, Louisiana, Missouri, Nebraska, Ohio, South Dakota, Tennessee, Texas, Utah, and West Virginia, as well as the governors of Kentucky and Mississippi.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.