Sen. Steve Daines said he went to the U.S. Supreme Court on Wednesday to support plaintiffs in the Espinoza v. Montana Department of Revenue case, in which the state is being sued by parents over a prohibition from using public funds for religious schools.
“I am standing in front of the United States Supreme Court about ready to go inside to hear oral arguments about a case very relevant to the state of Montana,” Daines said in a video his office posted. “This is the Espinoza v. Montana Department of Revenue case. This is about the fact that Montana parents and children are being discriminated against simply because of the school that they choose. This is about equal protection under the Constitution. This is about protecting our religious liberty. I’m looking forward to hearing these arguments and seeing Mrs. Espinoza.”
Daines said he was invited to attend oral arguments by Supreme Court Justice Clarence Thomas.
Daines and Rep. Greg Gianforte, both Montana Republicans, are part of an amicus brief on behalf of the plaintiffs.
Sen. Jon Tester, D-Mont., did not join the brief.
“Our state’s Constitution is very clear on where Montanans’ tax dollars can and can’t be spent, and I hope folks in Washington will not interfere with our state law or our Montana values,” he said last week in an email.
The case, which was heard Wednesday by the U.S. Supreme Court, stems from a dispute on a Montana scholarship program for private K-12 education that also makes donors eligible for up to $150 in state tax credits. Montana is among 37 states that have constitutions that prohibit religious schools from receiving state aid.
The Virginia-based Institute for Justice filed the lawsuit on behalf of Montana parents Kendra Espinoza, Jeri Ellen Anderson and Jamie Schaefer. Their attorneys describe them as mothers with “modest incomes who were counting on the program scholarships to keep their children in Stillwater Christian School, a nondenominational school” in Kalispell.
A district court in Flathead County ruled for the parents in 2016, but the Montana Supreme Court said in 2018 it conflicted with state Constitution and invalidated the scholarship program.
Raph Graybill, Gov. Steve Bullock’s chief legal counsel, was part of the state’s legal team in the Supreme Court chambers.
Graybill, a Democrat running for attorney general in 2020, criticized Daines and Gianforte in an email to supporters.
“They’ve asked the U.S. Supreme Court to side with out-of-state activists so they can send our public dollars to pay for private, religious schools–placing the state’s stamp of approval on some religions over others,” Graybill wrote.
He accused them of using the “courts to erase parts of our constitution. Gianforte and Daines want these activists to win, and our constitution’s protections for public schools and religious freedom to lose.”
“It’s a shocking claim for Gianforte and Daines to argue Montana’s religious freedom and quality public education for Montana kids is actually disguised bigotry,” he said.
Graybill faces fellow Democrat Kimberly Dudik in the June 2 primary. Republicans Austin Knudsen and Jon Bennion are running as well.
Jeanne Allen of the Center for Education Reform, a Washington, D-C.-based nonprofit which supports the plaintiffs, called this “by far the most important case involving education in more than 60 years.”
“At today’s hearing, Kendra’s team made a clear and convincing case that the state of Montana did indeed discriminate against her and her fellow petitioners,” she said in an email. She said if the court overrules Montana, then CER will be ready “to work with all states to ensure the right of parents to direct their kids’ education is fully supported nationwide.”
The Montana Democratic Party released a statement criticizing Daines and Gianforte for not supporting public schools.
“This lawsuit threatens to restrict religious liberty and undermine public education funding in Montana and across the country,” Executive Director Sandi Luckey said, adding they “should be ashamed of this blatant attack on Montana values.”