Montana Supreme Court Upholds Preliminary Injunction Against Ban on Gender Affirming Care for Minors

In Cross v. State of Montana, (MT Sup. Ct., Dec. 11, 2024), the Montana Supreme Court upheld a trial court's preliminary injunction against enforcement of Montana's ban on medical or surgical treatment of minors for gender dysphoria.  The court said in part:

 ¶37 The statute’s impact on individual privacy rights triggers strict scrutiny review, which requires the State to demonstrate that “the legislation [is] justified by a compelling state interest and [is] narrowly tailored to effectuate only that compelling interest.” ...  Though the State has a compelling interest in “safeguarding the physical and psychological wellbeing of a minor,” a statute implicating their privacy rights must be narrowly tailored to serve that interest....  SB 99 affords no room for decision-making by a patient in consultation with their doctors and parents.  The statute is a complete ban, prohibiting individualized care tailored to the needs of each patient based on the exercise of professional medical judgment and informed consent.  

¶38 At this stage of the proceedings, the District Court conscientiously weighed the parties’ evidence.... Our role is not to reweigh conflicting evidence or to question a district court’s assessment of the strength of the evidence on a preliminary injunction appeal....

Justice McKinnon, joined by Justice Gustafson, filed a concurring opinion, saying in part:

I write separately because I believe Plaintiffs’ equal protection claim should likewise be addressed by the Court.

Justice Rice dissented in part, saying in part:

¶68 I concur with the Court’s holding affirming the District Court’s entry of a preliminary injunction enjoining SB 99’s medical restrictions.  A legislative prohibition of an approved medical procedure must satisfy the high bar of being narrowly tailored to serve a compelling state interest in addressing a bona fide health risk....

 ¶69 However, it should also be noted that both the medical and legal grounds regarding the subject treatment of minors addressed by SB 99 are moving under our feet, and the status quo itself is becoming a moving target, even as this litigation continues....

¶70 I would reverse the District Court’s enjoinder of the funding prohibition of SB 99...

Daily Montanan reports on the decision.

DOE Enjoined from Applying New Title IX Rules Protecting Transgender Students In 4 States

In State of Louisiana v. U.S. Department of Education, (WD LA, June 13, 2024), a Louisiana federal district court enjoined the Department of Education from enforcing against four states new rules under Title IX which, among other things, bar discrimination by educational institutions against transgender students. (See prior posting). The new rules essentially apply the Supreme Court's interpretation of Title VII in the Bostock case to Title IX as well. The injunction applies to the states that were plaintiffs in the case-- Louisiana, Mississippi, Montana and Idaho. The court found that the new rules violate a number of statutory and constitutional provisions, saying in part:

In applying these statutory principles to Title IX, the Court finds that the term “sex discrimination” only included discrimination against biological males and females at the time of enactment. ,,,,

... [T]his Court finds that the application of Bostock and the Final Rule’s definition of “sex discrimination” contradict the purpose of Title IX.... Bostock does not apply because the purpose of Title VII to prohibit discrimination in hiring is different than Title IX’s purpose to protect biological women from discrimination in education.  ...

Defendants thus seemingly use Bostock in an attempt to circumvent Congress and make major changes to the text, structure, and purpose of Title IX. Such changes are undoubtedly contrary to Title IX and contrary to the Law.....

Plaintiffs argue the Final Rule’s new broad “severe or pervasive” standard, which considers speech or other expressive conduct that “limits” a person’s ability to participate in a program to be discriminatory harassment, cannot be squared with Title IX....

While Title VII is vastly important, and the Court sees the merits in harassment standards set forth in those provisions, the Court cannot simply apply the same standard to federally funded educational institutions. The “harassment standard” created by the Final Rule is obviously contrary to Title IX, and Plaintiffs have made compelling arguments for how it can violate the free speech right of the First Amendment. ...

Because the Final Rule is a matter of both vast economic and political significance, the Court finds the enactment of this rule involves a major question pursuant to the major questions doctrine. Therefore, Congress must have given “clear statutory authorization” to the applicable agency. The Court finds that Congress did not give clear statutory authorization to this agency....

This Court finds the Final Rule violates the Spending Clause because it contains ambiguous conditions and because the Final Rule violates other constitutional provisions – free speech and free exercise. Because this Court has found the Final Rule violates the Spending Clause, there is no need to discuss the Plaintiffs’ argument that the Final Rule violates the non-delegation doctrine....

This Court further finds that the Final Rule is arbitrary and capricious because the DOE (1) failed to address relevant factors and (2) and failed to consider important aspects of the problem. 

Montana Supreme Court Says AG Wrongly Rejected Language of Reproductive Rights Initiative

In Montanans Securing Reproductive Rights v. Knudson,(MT Sup. Ct., March 18, 2024), the Montana Supreme Court held that the state Attorney General was incorrect in in concluding that a proposed reproductive rights ballot initiative violates the separate vote requirement of the Montana Constitution. It also held that the Attorney General lacked authority to append a fiscal statement to the initiative. The court ordered the Attorney General to prepare a ballot statement for the initiative and forward it to the Secretary of State. 

Justice McKinnon filed a concurring opinion. Justice Rice filed a dissenting opinion, saying in part:

I believe it is clear that the provisions of CI-14 are not readily understood, have effects that are concealed, and would result in voter confusion this review is designed to prevent.

(See prior related posting.) Montana Free Press reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Montana AG Says Abortion Rights Initiative Cannot Go on Ballot

In a Memorandum dated January 16, Montana's Attorney General has ruled that proponents of an abortion rights amendment to the Montana Constitution may not begin to collect signatures to get the proposal on the ballot because the proposal is legally insufficient. (Full text of AG's ruling.) Montana's Supreme Court in Armstrong v. State (1999) has previously held that the state Constitution's privacy provisions protect the right to pre-viability abortion. The proposed Amendment as summarized by the Secretary of State would explicitly protect that right, would assure the right to abortion even post-viability when necessary to protect the pregnant person's life or health, and would prohibit the state from taking adverse action against patients, healthcare providers or anyone assisting someone in obtaining reproductive care. The Attorney General's Memorandum concludes that the proposed Amendment "logrolls multiple distinct political choices into a single initiative," in violation of the separate-vote provision of the state Constitution. Montana Free Press reporting on the Attorney General's action, says that Amendment proponents plan to challenge the Attorney General's action in court. [Thanks to Thomas Rutledge for the lead.]

Court Preliminarily Enjoins Montana's Ban on Transgender Treatments for Minors

 In Van Garderen v. State of Montana, (MT Dist. Ct., Sept. 27, 2023), a Montana trial court granted a preliminary injunction against enforcement of SB 99, the state's ban on surgical and hormonal treatments for minors suffering from gender dysphoria.  It concluded that the law likely violates the Equal Protection and Privacy provisions of the Montana Constitution.  The court said in part:

The Court finds that SB 99 likely violates Montana's Equal Protection Clause because it classifies based on transgender status—making it a sex-based classification—and because it infringes on fundamental rights, subjecting it to strict scrutiny. The Court finds that SB 99 likely does not survive strict scrutiny because it does not serve its purported compelling governmental interest of protecting minor Montanans from pressure to receive harmful medical treatments. Alternatively, the Court finds that SB 99 is unlikely to survive any level of constitutional review. The Court also finds that SB 99 likely violates Plaintiffs’ right to privacy under Montana’s Constitution because the Court does not find that the treatments proscribed by SB 99 constituted “medically-acknowledged, bonafide health risk[s][,]” and because, again, SB 99 likely cannot survive strict scrutiny.....

LawDork reports at greater length on the decision. [Thanks to Scott Mange for the lead.] 

Court Defines Clergy-Penitent Privilege Under Montana Law

Caekaert v. Watchtower Bible and Tract Society of New York, (D MT, May 22, 2023), involved a motion by plaintiff to compel production of documents that the Jehovah's Witnesses parent body withheld in discovery claiming clergy-penitent privilege. At issue were reports from congregations to the parent body of known child molesters currently or formerly in appointed positions in the congregation. In defining the scope of the clergy-penitent privilege, the Montana federal district court said in part:

The Court recognizes the deference it must give religious groups in the organization of their internal affairs. However ... such deference does not mean a religious organization determines for the Court what is privileged merely by contending that it is confidential under the religious body's doctrine...

At the same time, the Court recognizes that the privilege is not so narrow so as to exclude non-penitential statements made in the course of the church's disciplinary process....

Montana Supreme Court: State Constitution Protects Abortion Care by Advance Practice Registered Nurses

In Weems v. State of Montana, (MT Sup. Ct., May 12, 2023), the Montana Supreme Court held that a 2005 Montana statute that bars Advance Practice Registered Nurses from delivering abortion care violates the Montana Constitution.  The court summarized its decision:

Article II, Section 10, of the Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk. The State has failed to meet its burden of demonstrating that APRN-FNPs and APRN-CNMs providing abortion care present a medically acknowledged, bona fide health risk. The State has failed to present any evidence that demonstrates abortions performed by APRNs include more risk than those provided by physicians or PAs. The State has failed to identify any reason why APRNs should be restricted from providing abortions, and thus failed to articulate a medically acknowledged, bona fide health risk. The District Court correctly determined that no genuine dispute of material fact exists regarding the safety and efficacy of APRNs providing early abortion care. Accordingly, § 50-20-109(1)(a), MCA, is an unconstitutional interference with a woman’s right of privacy to seek medical care from a qualified provider of her choice.

Law & Crime reports on the decision.

Montana Governor Signs 5 Abortion-Related Bills

On Wednesday, Montana Governor Greg Gianforte signed into law five bills recently passed by the Montana legislature which regulate abortion procedures or availability.  The Daily Montanan reports on the bills that will now become law. Here is its description of each bill:

Senate Bill 154 ... carves out an exception to abortion under the constitutional right to privacy. A legal review note for the bill said it was at odds with the state constitution, which [Senate Judiciary Chairman Sen. Kieth] Regier responded to in a rebuttal saying it was the state’s Supreme Court that decided that abortion was covered under the right to privacy, and not the constitution.

House Bill 303... provides protections for medical practitioners and facilities that object to participation in health care services based on conscience, defined as “ethical, moral, or religious beliefs or principles.”...

House Bill 575 ... bans abortions after 24 weeks with a definition for viability by that stage of development, and it requires medical practitioners to perform and keep record of an ultrasound. 

House Bill 625 ... is a resurrection of the ballot issue LR-131 that voters rejected last fall, which would have required doctors save any infant born alive after an abortion later in pregnancy.

House Bill 786 ... has the state create regulations for the “humane disposition” of dead infants and fetuses, and other regulations of maternal complications and deaths tied “directly or indirectly” to abortions.

Five additional abortion-related bills are close to being submitted to the Governor for his signature.

Pastor Sues Real Estate Organization Over Ethics Rule On Hate Speech

Suit was filed last week in a Montana state trial court against a local chapter of the National Organization of Realtors by Pastor Brandon Huber who is also a part-time realtor challenging the National Organization's Code of Ethics provision that prohibits realtors from using "harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity." The Code of Ethics provision applies to all activities of a realtor, not just to those related to real estate transactions. 

The complaint (full text) in Huber v. Missoula Organization of Realtors, Inc., (MT Dist. Ct., filed 11/3/2021), states that the Missoula Organization of Realtors has scheduled an ethics hearing for Huber after a complaint regarding his use of language about gays and lesbians. Huber says that his church merely ended its partnership with a summer kid's lunch program when it discovered that LGBTQ Pride inserts that violated the church's religious teachings were included with the lunches. The church instead began its own lunch program, and explained its decision in a letter to its congregation. The complaint alleges that the ethics provision is void for vagueness and that the action by the realtors' organization violates Art. II, Sec. 4 of the Montana Constitution which provides:

... Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

Volokh Conspiracy reports on the lawsuit.

Montana Makes It More Difficult To Obtain Transgender Name Change On Birth Certificates

Montana Governor Greg Gianforte recently signed Senate Bill 280 (full text) which provides in part:

The sex of a person designated on a birth certificate may be amended only if the department receives a certified copy of an order from a court with appropriate jurisdiction indicating that the sex of the person born in Montana has been changed b y surgical procedure.

Metro Weekly reports on the new law.

State Moves To Restrict Abortions Continue

A number of states continue attempts to restrict abortion rights.

In Montana, Governor Greg Gianforte last Monday signed three bills: HB 136 (full text) barring "perform[ing] an abortion of an unborn child capable of feeling pain unless it is necessary to prevent a serious health risk to the unborn child's mother; HB 140 (full text) requiring that before an abortion a pregnant woman must be given the opportunity to view an active ultrasound and hear a fetal heart tone; and HB 171 (full text) setting out procedures for prescribing abortion-inducing drugs, barring delivery of such drugs by mail and prohibiting providing such drugs in schools or on school grounds. Also yesterday the Montana legislature approved HB 167 (full text) calling for a referendum on the adoption of the Born Alive Infant Protection Act. Law & Crime reports on these developments.

In Oklahoma in recent days Governor Kevin Stitt has signed five bills on abortion: HB 1102 (full text) which defines “unprofessional conduct” to include the performance of an abortion unless performed to prevent the death or significant physical impairment of the mother; HB 1904 (full text) requiring doctors performing abortions to be board certified in obstetrics and gynecology; HB 2441 (full text) barring abortions if a fetal heartbeat can be detected, except to prevent death or serious risk of significant physical impairment of the mother; SB 584 (full text) extending ban on funding of provider who has been found by a court to have trafficked in fetal body parts to funding by cities or counties, as well as the state; SB 918 (full text) making abortion illegal if the U.S. Supreme Court overrules Roe v. Wade or a federal constitutional amendment restores state authority to outlaw abortions. AP reports on some of these developments.

Yesterday the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Memphis Center for Reproductive Health v. Slatery. In the case, a Tennessee federal district court issued a temporary restraining order barring enforcement of two bans on pre-viability abortions. One bans abortions when a fetal heartbeat is detectable. The other bans pre-viability abortions sought because of the race or sex of the fetus or a Down syndrome diagnosis. (See prior posting.) Courthouse News Service reports on the oral arguments. [Thanks to Scott Mange for the lead.]

Montana Enacts A Religious Freedom Restoration Act

On April 22, Montana Governor Greg Gianforte signed SB215, the Montana Religious Freedom Restoration Act (full text). It provides in part:

State action may not substantially burden a person's right to the exercise of religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to that person's exercise of religion: (a) is essential to further a compelling governmental interest; and (b) is the least restrictive means of furthering that compelling governmental interest.

Christianity Today reports on the new law.

Removing Roadside Cross Did Not Violate Father's 1st Amendment Rights

In Kelly v. Montana Department of Transportation, (D MT, March 23, 2021), a Montana federal district court adopted a magistrate's recommendations, 2021 U.S. Dist. LEXIS 55046 (D MT, March 9, 2021). The magistrate recommended dismissing 1st Amendment objections to the removal of a "spiritual cross" that plaintiff had erected along side of a highway in memory of his stepson.  Rejecting free speech claims, the magistrate held that "a spiritual cross erected on public land adjacent to a highway constitutes government speech." Rejecting free exercise claims, the magistrate said in part:

Kelly does not allege that the Defendants prohibited him from freely exercising his religious beliefs though private speech. Kelly alleges that the Defendants removed a spiritual cross that he had erected on public land.... [T]he spiritual cross constituted government speech. Kelly has therefore failed to state a cognizable claim under the First Amendment's Free Exercise Clause.

Supreme Court Says Montana Cannot Exclude Religious Schools From Tax-Credit Program

In Espinoza v. Montana Department of Revenue, (US Sup. Ct., June 30, 2020), the U.S. Supreme Court in a 5-4 decision held that Montana's exclusion of religious schools from its scholarship tax credit program violates the Free Exercise clause of the U.S. Constitution.  The Montana Supreme Court had invalidated the entire scholarship program because it included religious schools, relying on the "no aid" provision of the Montana constitution.  Chief Justice Roberts majority opinion, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, said in part:

This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no-aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches,” “sectarian schools,” and “religiously-affiliated schools.”... Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were “religiously affiliated” and “controlled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding “schools controlled by churches.”... The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations “owned or controlled by a church, sect, or other religious entity.”...

...Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.

Justice Thomas filed a concurring opinion which was joined by Justice Gorsuch, saying in part:

I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.

Justice Alito filed a concurring opinion, saying in part:

Respondents argue that Montana’s no-aid provision merely reflects a state interest in “preserv[ing] funding for public schools,”... known as “common schools” during the Blaine era. Yet just as one cannot separate the Blaine Amendment from its context, “[o]ne cannot separate the founding of the American common school and the strong nativist movement.”  Spearheaded by Horace Mann, Secretary of the Massachusetts Board of Education from 1837 to 1848, the common-school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly difficult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of “least-common denominator Protestantism.”This was accomplished with daily reading from the King James Bible, a curriculum that, Mann said, let the book “speak for itself.” ... Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians.

Mann’s goal was to “Americanize” the incoming Catholic immigrants. In fact, he and other proponents of the common-school movement used language and made insinuations that today would be considered far more inflammatory.

Justice Gorsuch filed a concurring opinion, saying in part:

 I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way....

Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion....

Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.

Justice Ginsburg filed a dissenting opinion, joined by Justice Kagan, saying in part:

[T]he Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.

Justice Breyer filed a dissenting opinion, joined in part by Justice Kagan, saying in part:

It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke, is what petitioners “‘propos[e] to do—use the funds to’” obtain a religious education. ....

I agree with the majority that it is preferable in some areas of the law to develop generally applicable tests. The problem, as our precedents show, is that the interaction of the Establishment and Free Exercise Clauses makes it particularly difficult to design a test that vindicates the Clauses’ competing interests in all—or even most—cases.That is why, far from embracing mechanical formulas, our precedents repeatedly and frankly acknowledge the need for precisely the kind of “‘judgment-by-judgment analysis’” the majority rejects.

Justice Sotomayor filed a dissenting opinion, saying in part:

Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax-credit program entirely....

To be sure, petitioners may want to apply for scholarships and would prefer that Montana subsidize their children’s religious education. But this Court had never before held unconstitutional government action that merely failed to benefit religious exercise....

[T]he Montana Supreme Court remedied a state constitutional violation by invalidating a state program on state-law grounds, having expressly declined to reach any federal issue....

NPR reports on the decision.

Supreme Court Will Hear Arguments Today In Montana Religious School Aid Case

The U.S. Supreme Court will hear oral arguments this morning in Espinoza v. Montana Department of Revenue.  In the case, the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. (See prior posting.) The Solicitor General will  participate in oral argument, contending that Montana's "no-aid" provision violates the U.S. Constitution's free exercise clause.  SCOTUS blog has a preview of today's arguments. Here is SCOTUS blog's case page with links to all the filings in the case and to additional discussion of the issues involved. I will post the transcript of the oral arguments later today when it becomes available.

Jehovah's Witness Practices Are Within Confidentiality Exception To Mandatory Abuse Reporting

In Nunez v. Watchtower Bible and  Tract Society of New York, Inc., (MT Sup. Ct., Jan. 8, 2020), the Montana Supreme Court reversed a jury award of $35 million in compensatory and punitive damages against the Jehovah's Witnesses for violating Montana's statute mandating reporting of child abuse.  The court concluded that Jehovah's Witnesses came within an exception in the statute for communications required to be confidential under church law or established practice. The court said in part:

[W[e decline to conduct further inquiry into the validity of Jehovah’s Witnesses’ tenets and doctrines, including its canon and practice for adherence to a requirement of confidentiality in handling child abuse reports. Jehovah’s Witnesses representatives testified that its process for addressing these reports is strictly confidential, notwithstanding the involvement of numerous church clergy and congregants.... 

We hold accordingly that the undisputed material facts in the summary judgment record demonstrate as a matter of law that Jehovah’s Witnesses were not mandatory reporters under § 41-3-201, MCA, in this case because their church doctrine, canon, or practice required that clergy keep reports of child abuse confidential, thus entitling the Defendants to the exception of § 41-3-201(6)(c), MCA. The reporting statute as written accommodates Jehovah’s Witnesses’ definition and practice of confidentiality.

[Thanks to James Phillips for the lead.]

Cert. Filed In Montana Scholarship Tax Credit Challenge

A petition for certiorari (full text) was filed with the U.S. Supreme Court on March 12 in Espinoza v. Montana Department of Revenue.  In the case the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. (See prior posting.)  The petition for review asks the U.S. Supreme Court to decide whether it violates the 1st or 14th Amendments for a state court to invalidate a generally available and religiously neutral student-aid program because the program includes students attending religious schools.  Institute for Justice issued a press release announcing the filing of the cert. petition.

Montana Supreme Court Invalidates Tuition Tax Credit Program

In Espinoza v. Montana Department of Revenue, (MT Sup. Ct., Dec. 12, 2018), the Montana Supreme Court in a 5-2 decision held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. The majority said in part:

Montana’s no-aid provision is unique from other states’ no-aid provisions. Article X, Section 6’s prohibition of “any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any . . . school . . . controlled in whole or in part by any church” make it a broader and stronger prohibition against aid to sectarian schools than other states. Even other states whose no-aid provisions also contain “indirect” language only prohibit aid in the form of the direct or indirect taking of money from the public treasury....  Such language is distinct from and less stringent than Montana’s prohibition on any type of aid, whether it be a “direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property.” Mont. Const. art. X, § 6(1). 

The majority also held that the Department of Revenue's attempt to cure the program's unconstitutionality by Rule was invalid because the Department exceeded its rule making authority. The court left the student scholarship organization provisions in force, but without the accompanying tax credit for contributions.

Justice Gustafson filed a concurring opinion concluding that the tax credit program also violates the federal Free Exercise and Establishment clauses. Justice Sandefur joined this concurring opinion and also filed a separate concurrence.

Justice Baker, joined by Justice Rice dissented saying in part:

The creation of the credit is a government’s determination not to collect tax revenues. The statute diverts the funds before they ever become public monies. This well may result in an indirect impact on the “public fund or monies,” but it is not an indirect payment,,,,

The Court today holds that a tax credit—granted to a private individual for a donation that may or may not be directed to a religious entity—violates the State Constitution, even though it is clear under the law that a direct tax exemption by the State to a church does not.

Justice Rice also filed a separate dissent. The Missoulian reports on the decision,

$35 Million Verdict Against Jehovah's Witness Organization In Sex Abuse Case

NBC News reported yesterday that a Montana federal court jury has awarded $35 million to a woman who contended that the national organization of the Jehovah's Witness church ordered Montana clergy not to report her sexual abuse as a child by a Jehovah's Witness congregation member.  According to NBC:

A judge must review the penalty, and the Jehovah's Witnesses' national organization — Watchtower Bible and Tract Society of New York — plans to appeal.

Montana's Anti-Polygamy Laws Upheld

In Collier v. Fox, (D MT, March 9, 2018), a Montana federal district court adopted a magistrate's recommendations and dismissed a challenge to Montana's civil and criminal anti-polygamy laws. When the state denied Nathan Collier a marriage license to marry a second wife, he nevertheless entered a relationship with her and they hold themselves out as being married. The magistrate's Feb. 22 opinion (full text) dismisses the challenge to the state's criminal anti-polygamy provisions because there is no genuine threat that the parties challenging the law will be prosecuted, saying:

The State Defendants have taken the position that Nathan’s and Christine’s declaration to be husband and wife, without the accompanying possession of a state-issued marriage license, is insufficient to violate the Montana bigamy statutes. Therefore, this case presents the unusual situation where the State of Montana has taken the position that the Colliers’ conduct is not criminal, while the Colliers insist that it is.

Plaintiffs also challenge the state's refusal to issue a marriage license for Collier's marriage to his second wife.  The court held that the state's anti-polygamy law is constitutional, relying on the U.S. Supreme Court's 1878 decision in Reynolds v. United States. Billings Gazette reports on the decision.