Montana Court Issues Preliminary Injunction To Allow Parochial School Participation In Tax Credits

According to The Missoulian, in Montana on Thursday, a state trial court judge issued a preliminary injunction barring the Montana Department of Revenue from enforcing its rule that excludes religiously affiliated schools from participating in the state's new School Contributions Tax Credit law. (See prior posting.) The Department of Revenue takes the position that participation in the school aid program by religiously affiliated schools violates state constitutional bans on that prohibit direct and indirect payments or appropriations to religious or sectarian schools.

Second Lawsuit Challenges Exclusion of Parochial Schools From Montana Tax Credit Plan

As previously reported, earlier this month a state court lawsuit was filed in Montana challenging an administrative rule that excludes religiously affiliated schools from participating in the state's new law that provides state income tax credits for contributions to student scholarship organizations.  This week a second challenge was filed, this time a lawsuit in federal court brought by parents and by the Association of Christian Schools International. (Pacific Legal Foundation press release.) The complaint (full text) in Armstrong v. Kadas, (D MT, filed 12/28/2015), alleges that enforcement of the administrative rule violates the U.S. Constitution's establishment, free exercise and equal protection clauses, as well as Montana law. Great Falls Tribune reports on the lawsuit.

Suit Challenges New Rule Excluding Religious Schools From Montana Scholarship Tax Credit Law

The Montana Department of Revenue in a notice (full text) certified to the Secretary of State on Dec. 14 that it has adopted, as proposed, Rule 1 (full text) that excludes religiously affiliated schools from participating in the state's new School Contributions Tax Credit law. (See prior posting.)  On Dec. 16. three mothers sued the state challenging the new rule.  The complaint (full text) in Espinoza v. Montana Department of Revenue, (MT Dist. Ct., filed 12/16/2015) claims that the exclusion of religiously affiliated schools is inconsistent with the intent of the legislature in enacting the scholarship tax credit law, and contends that the exclusion violates the free exercise, establishment and equal protection clauses of the Montana and U.S. Constitutions.  Institute for Justice announced the filing of the lawsuit.

Montana has a procedure for committees of the state legislature to weigh in on whether they believe that a particular proposed rule is consistent with legislative intent.  Using that procedure, the relevant committees of the Montana House and Senate voted that the proposed rule is inconsistent with legislative intent. (Notice of Legislative Poll).  The results of this legislative poll are admissible in evidence in the suit challenging the new rule.

The Great Falls Tribune reported yesterday:

Montana Solicitor General Dale Schowengerdt submitted comments while the rule was still in draft form that said a judge would likely decide it is unconstitutional to categorically exclude religious entities from a neutral benefits program without reason.

“The Attorney General believes that it would not be defensible,” Schowengerdt wrote of Montana Attorney General Tim Fox.

But Fox will have to defend the rule in the lawsuit and another expected to be filed in federal court. The Department of Justice is the attorney for the state when an agency is sued.

Magistrate Holds Plaintiffs Lack Standing To Challenge Montana's Polygamy Ban

In Collier v. Fox, (D MT, Dec. 8, 2015), a Montana federal magistrate judge recommended dismissing a lawsuit asserting a pre-enforcement challenge to the state's bigamy statutes.  The suit was filed after a county clerk refused to issue a marriage license for Christine Collier Parkinson to legally marry Nathan Collier who is already legally married to Victoria Collier.  In the letter denying the license, the county clerk told the applicants that  obtaining a second marriage license would be considered bigamy.  However the letter did not explicitly threaten prosecution.  The court concluded that plaintiffs lack standing to bring the challenge because they have not been threatened with prosecution.  Plaintiffs say that the state might use its common law marriage statute to claim that the plaintiffs are already in violation.  The court said, however, that there is no history of prosecution of polygamists under this theory. Life Site News reports on the decision.

Proposed Montana Rules Will Exclude Religious Schools From Tax Credit Program

Last month, the Montana Department of Revenue issued proposed rules (full text) to implement the state's recently-enacted School Contributions Tax Credit law (full text) (background).  Under the law, a state income tax credit of up to $150 is available for contributions to student scholarship organizations that provide scholarships for students at a "qualified educational provider."  One of the proposed new rules would precluded religious schools from participation in the program.  Proposed Rule I provides:

(1) A "qualified education provider" has the meaning given in 15-30-3102, MCA, and pursuant to 15-30-3101, MCA, may not be:

(a) a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination; or

(b) an individual who is employed by a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination when providing those services.

(2) For the purposes of (1), "controlled in whole or in part by a church, religious sect, or denomination" includes accreditation by a faith-based organization

A hearing on the proposed rules will be held on Nov. 5. Written comments on the proposed rules may be submitted until Nov. 17.  Montana Watchdog raises constitutional questions about the exclusion of religiously sponsored educational institutions.

Suit Challenges Montana's Ban on Polygamy

According to MTN News, a federal court lawsuit was filed yesterday challenging Montana's  ban on polygamous marriages.  Nathan and Vicki Collier were legally married in 2000.  Nathan is now seeking a marriage license to legally marry Christine Parkinson who has also been living as his wife in a polygamous relationship.  The family has a total of eight children.  In July, the Yellowstone County clerk's office denied Nathan a marriage license and asked the county attorney's office for legal advice.  In a letter, the Deputy County Attorney said that the U.S. Supreme Court's same-sex marriage decision does not extend to protect polygamous marriages.  Nathan, Vicki and Christine all filed the lawsuit, representing themselves, arguing that their consensual plural family association is protected by the equal protection, free exercise,  and establishment  clause as well as by the 1st Amendment's protection of speech and association. Montana's bigamy statute imposes a fine of $500 and imprisonment up to 6 months on those convicted.

Inspired By Supreme Court Decision, Montanans Apply For License For Polygamous Marriage

AP reported yesterday that in Billings,. Montana, a man and his two wives, citing the Supreme Court's Obergefell decision, have applied for marriage licenses to legitimize their polygamous marriage. The man, Nathan Collier, a former Mormon who was excommunicated for polygamy, said: "It's about marriage equality, You can't have this without polygamy." Officials in the Yellowstone County clerk's office are consulting with the county attorney's office before giving a final answer.  The county's chief civil litigator says that his research so far shows that  "the law simply doesn't provide for that yet." [Thanks to How Appealing for the lead.]

Montana's Same-Sex Marriage Bans Falls; Becomes 34th State To Recognize Marriage Equality

On Wednesday, a Montana federal district court issued a permanent injunction barring Montana from enforcing statutory and constitutional provisions that prevent same-sex marriages or recognition of same-sex marriages performed in other jurisdictions.  The opinion in Rolando v. Fox, (D MT, Nov. 19, 2014), granting plaintiffs' motion for summary judgement on their equal protection claim, relies heavily on the 9th Circuit's decision last month striking down same-sex marriage bans in Idaho and Nevada. (See prior posting.) The Montana federal court's injunction, made effective immediately, makes Montana the 34th state to permit same-sex marriage.

AP reported today that in the Yellowstone County clerk's office in Billings, one deputy clerk has expressed religious objections, and three others have moral objections, to issuing same-sex marriage licenses. The County Human Relations Director, after consulting with the county attorney, has exempted the four, in part citing Title VII of the 1964 Civil Rights Act barring religious discrimination in employment.  Yellowstone County Clerk Kristie Lee Boelter is unhappy with the exemptions.  There are a total of 20 deputy clerks in the office.

Montana's Same-Sex Marriage Ban Challenged

According to Lambda Legal, as of last week only 3 states which do not allow same-sex marriage had no litigation challenging the ban pending.  Now that has dropped to two.  The ACLU of Montana announced yesterday the filing of a lawsuit on behalf of four same-sex couples seeking to marry in Montana or to have their out-of-state same-sex marriage recognized in Montana. The complaint (full text) in Rolando v. Fox, (D MT, filed 5/21/2014), asks the court to declare that Montana's constitutional and statutory bans on same-sex marriage violate the due process and equal protection clauses of the 14th Amendment. With the filing of this lawsuit, only North and South Dakota have marriage equality bans with no litigation pending.

Montana Catholic Diocese Files For Chapter 11 Protection To Implement $17.5M Settlement of Abuse Cases

The Roman Catholic Diocese of Helena, Montana filed for Chapter 11 bankruptcy reorganization on Friday, according to NBC News. The filing comes in anticipation of a $15 million settlement for 362 victims of clergy abuse who have sued claiming that the diocese knew or should have known of the abuse that took place from the 1940's to the 1980's. Another $2.5 million will be set aside for victims who have not yet come forward. Most of the settlement will be funded by insurance carriers, but the diocese will pay at least $2.5 million additionally. The diocese covers 21 counties and parts of two others in western and north central Montana.