A Montana case will be heard before the U.S. Supreme Court on January 22.

Espinoza v. Montana Department of Revenue is the case that has the potential of determining whether states are allowed to manage their own educational systems in such a way that they can discriminate against religion or even to favor some religions over others.

Constitutional scholar Rob Natelson with the Independence Institute in Denver has authored a brief in the case for the Supreme Court and spoke with KGVO News on Thursday.

“The Montana Constitution has a provision that denies the use of any aid to what are called ‘sectarian’ schools,” said Natelson. “The Montana provision is particularly strict in that even a religion-neutral voucher program would not be allowed in Montana. The provision in the 1972 Constitution was carried over from the 1889 Constitution that was widely understood to be a provision that discriminated in favor of some religions and  against other religions. That kind of discrimination is not allowed by the U.S. Supreme Court under the First Amendment.”

Natelson said the writers of the 1972 Montana Constitution were warned about the bigoted history of the language used in the 1889 document.

“In 1972, the Constitutional Convention in Montana carried over that same language despite the fact that they were warned about the distasteful and bigoted origins of the phrase,” he said. “So, the Supreme Court has to decide whether there is a violation of the First Amendment here, and as someone who has researched what the term ‘sectarian’ historically meant and also researched what went on in the 1972 convention, I think it’s pretty clear that there is a violation of the First Amendment, and I would lay 2 to 1 odds that this provision in the Montana Constitution does not survive the U.S. Supreme Court.”

Natelson said the opposition led by the union representing Montana’s teachers goes beyond even just non-public schools receiving any funding that could potentially go to public schools.

“This doesn’t involve public dollars anyway,” he said. “The question before the court is simply whether someone can take a tax credit for giving $150.00 to a scholarship association which then can aid poor children in the decision of the school they want to attend. That could be a public school that’s out of district and charges tuition, or it could be a private non-religious school, or it could be a religious school. The U.S. Supreme Court has repeatedly upheld options like this. The position of the teachers union is understandable, because they don’t want any competition. They have a hammerlock on Montana’s public schools and they clearly don’t want other schools that offer alternatives.”

Natelson said the case will be heard for oral arguments on January 22, with a decision expected sometime before June 30 when the current term ends.

He added these comments on the opposition to sectarian schools.

“This so-called sectarian language was essentially imposed upon Montana in 1889 by the federal government,” he said. “It has a very, very disreputable history and it’s really unfortunate that the 1972 Constitutional Convention, despite being warned about it, chose to carry it over into the 1972 Constitution. I think Montanans had better prepare to allow more school choice to families as they seek the educational options for their children.”

The plaintiffs in the case are families with children in Montana, while the defendant is a state agency, the Montana Department of Revenue that states the Montana constitution requires it to deny educational choice to those families.