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In Espinoza v Montana Department of Revenue (2020), the Montana Legislature sought “to provide parental and student choice in education” (p. 2251) by enacting a scholarship program for students attending private schools. The program granted a tax credit of up to $150 to any taxpayer who donated to a participating “student scholarship organization” which then used the donations to award scholarships to children for tuition at a private school; however, religious private schools were excluded. The Court held that excluding qualified religious schools from its school scholarship program was a violation of the Free Exercise Clause of the First Amendment and therefore unconstitutional. “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious” (p. 2261).

A second source of law in the U.S. legal system is statutory law. The U.S. government is composed of three parallel systems of government at the federal, state, and local levels, a form of government known as federalism (H. R. Turnbull & Turnbull, 2000). At the federal level, the Constitution is the basic law of the land. Congress is empowered to enact federal laws as long as they do not violate the U.S. Constitution. Similarly, each state has its own constitution and legislative body for enacting laws at the state level. State laws may not violate either state constitutions or the federal constitution.