Stillwater Christian School

Three parents whose children attend Stillwater Christian School in Kalispell filed a lawsuit in December 2016 to gain access to scholarship funds administered by the state Department of Revenue. Content Exchange

After the Montana Supreme Court said religious schools cannot participate in a tax credit program that reimbursed scholarship donations, a law firm has appealed to the U.S. Supreme Court. 

The Institute for Justice, a conservative law firm representing parents in northwest Montana, is arguing that Montana's exclusion of religious schools violates the U.S. Constitution. 

The tax credit program was approved by the legislature and allowed to become law by Gov. Steve Bullock in 2015. It let Montanans receive a tax credit of up to $150 for donations to approved scholarship organizations for private schools or "innovative education programs" in public schools. The court decision struck down the program. 

The firm filed the appeal Tuesday. Institute for Justice Attorney Erica Smith expressed confidence that the court would take up the case. The filling points to a "long-standing split on whether barring religious options from student-aid programs violates the federal Religion and Equal Protection Clauses."

In the Montana court, the case took on a unique issue among school choice legal battles, forcing courts to address whether a tax credit is government spending. Most previous school choice cases have been decided on other issues, like taxpayer standing. 

The Montana Supreme Court's majority opinion highlights the use of "indirect appropriations" in the state constitution's prohibition against directing public money toward religious programs. 

The new federal appeal doesn't argue with the Montana court's interpretation of spending, but it does argue that if laws barring aid to religious institutions result in the exclusion of religious institutions from public programs like Montana's, then those laws violate the federal constitution.

Smith expected the court to make a decision on whether to take the case by June.  

This article originally ran on