September 13, 2020
Last summer, in a predictably 5-4 decision, the U.S. Supreme Court ruled that a Montana law prohibiting families from using state tax credit scholarships for tuition at religious schools violated the First Amendment’s Free Exercise of Religion clause.
The ripples of that decision have reached Vermont.
Three families, represented by the “Institute for Justice” — which was founded with seed money from Charles Koch — are suing Vermont, which does not allow public money to be spent on religious instruction.
Former Vermont Education Secretary Rebecca Holcombe calls the lawsuit “a raid on the public education fund,” adding that “in other states like North Carolina, these vouchers to religious schools have compelled taxpayers to fund programs that are aggressively anti-LGBTQ.”
The lawsuit is not a slam-dunk for the plaintiffs. The Supreme Court held that it was unconstitutional to prohibit taxpayer-funded benefits from flowing to religious entities solely because they are religious. The Vermont Constitution, on the other hand, instead includes a “compelled support clause,” which blocks public dollars from supporting religious instruction or indoctrination.
That means that while the state can’t bar entities from receiving public funds based on their status as religious institutions, it can put restrictions on what the money can be used for.
I suspect that, if the plaintiffs lose, they will appeal to the U.S. Supreme Court, where there are likely to find five very receptive justices.