The Supreme Court justices on Wednesday sounded ready to rule that states that offer scholarships or subsidies to private schools must include those operated by churches.

The court’s conservatives, including Chief Justice John G. Roberts Jr., said that excluding private schools because they are religious amounts to unconstitutional discrimination similar to racial bias.

States “do not have to fund private education at all,” said Justice Samuel A. Alito Jr. And most, he added, do not do so. But if they provide vouchers or grants to children or their parents for private elementary or secondary schools, they “may not discriminate” between the private schools that are religious and those that are not, he said.

Justice Brett M. Kavanaugh agreed, saying the schools and parents are “entitled to equal treatment.” This means, he said, “you can’t exclude religion” from the available options. He said the history of excluding religious schools from public funding has its origins in the “grotesque religious bigotry against Catholics” in the late 19th century.

Roberts opened the argument just after 10 a.m., and he sounded surprisingly fresh and lively, despite having presided over the Senate impeachment trial of President Trump until nearly 2 a.m. He asked several questions during the argument and, at one point, said that discrimination based on race or religion is nearly always unconstitutional.

The arguments came in the case of Espinoza vs. Montana. In 37 states, including California as well as Montana, the state constitution forbids sending tax money to churches or church schools. Based on that provision, the Montana Supreme Court struck down a 2015 state law that gave tax credits to people who donated money to scholarship funds that in turn gave small grants to children who attended private schools. Most of those schools were religious.


The Virginia-based Institute for Justice appealed on behalf of Kendra Espinoza and argued that the state’s exclusion of church schools violated the 1st Amendment’s protection for the “free exercise” of religion and the 14th Amendment’s guarantee of equal protection of the laws.

“A state cannot discriminate on the basis of religion,” said Richard D. Komer, attorney for the institute.

The four liberal justices disagreed throughout the hour. Justice Sonia Sotomayor said the court was on the verge of a “radical” change in the law. Through most of American history, the Constitution has been seen as requiring a “separation of church and state,” which included no public funding for churches or religious teaching.

At one point, Justice Stephen G. Breyer wondered aloud whether a high court ruling for the Montana parents could be read as requiring public funding for Catholic schools. He noted that many cities and states now fund “charter schools,” but not religious schools.

The Trump administration joined the case on the side of the parents seeking scholarships for the religious schools.


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