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How a Pending Supreme Court Case and the Growing School Choice Movement Could Lead to More Religious Land Use Cases

This week is National School Choice Week. And coincidentally, just last week the United States Supreme Court heard oral arguments in a key school choice case with significant religious liberty concerns. The case, Espinoza v. Montana Department of Revenue, involves a scholarship program that provides a tax credit to those who contribute to private, not-for-profit scholarship organizations. When some families sought to apply the scholarship funds towards tuition at private, religious schools, the Montana Department of Revenue issued a rule excluding religious schools from the program pursuant to Montana’s “Blaine Amendment.” A Blaine Amendment is a constitutional provision many states added to their constitutions in the late 1800’s in a transparently anti-Catholic effort to ensure that Catholic schools never received state funds.

The constitutionality of Blaine Amendments was most recently called into question in 2017 when the United States Supreme Court held in Trinity Lutheran of Columbia v. Pauley, that the Free Exercise Clause of the First Amendment does not allow states to target or exclude institutions based on their “religious status.” In short, if states make funds or some other benefit generally available to private organizations, they can’t categorically exclude religious organizations. The Court called “laws that target the religious for ‘special disabilities’ based on their ‘religious status’…odious to our Constitution.”

If the Supreme Court decides the Espinoza case according to its holding in Trinity Lutheran, states could begin enacting a whole host of school-choice initiatives and free parents up to direct funds to the private schools of their choosing, including religious schools. This in turn could make religious schools a more affordable option for parents and lead to significant growth in the number and size of religious schools. We could be on the verge of a boom in private, religiously affiliated education options in states across the country.

But with each new school that is founded or expanded to meet the growing demand, there will be significant land use issues. Where will new schools be allowed to locate? Can a municipality treat public schools better than private religious schools? How much will municipalities allow existing schools to expand to accommodate more students?

At Dalton & Tomich, we have already seen a significant increase in the number of religious land use cases was have had to file on behalf of religious schools which have been denied the land use approvals they need to locate, operate, or expand in a community. Far too many school leaders are completely unaware of the substantial protections religious schools are afforded under the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. 2000cc et seq. (RLUIPA). This is exactly why we have written a guide to help religious schools better understand and assert their rights.

If your religious school is seeking to expand its campus or add on to existing structures and you are facing opposition from the local planning commission, city council or other local governing body, you aren’t out of options. RLUIPA protects religious organizations against discrimination in land use and zoning matters.


Please contact the experienced religious land use and zoning attorneys of Dalton & Tomich, PLC if you need help defending your school’s right to grow and pursue your mission freely so your community can thrive.


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