By Charles Fain Lehman • The Free Beacon

The Department of Justice filed an amicus brief Thursday in support of students claiming they were discriminated against after the state of Montana denied them placement in a tax credit scholarship program because the school they attended was a Christian one.

The case, Espinoza v. Montana Department of Revenue, concerns a the Montana Tax Credit Scholarship Program, which allows Montanans to deduct up to $150 of their contribution to a privately run scholarship program. The state department of revenue prompted the suit when it added a rule prohibiting tax credits for contributions to schools owned or operated by “a church, religious sect, or denomination.”

A group of parents brought suit on behalf of their children in December 2015 after they were denied participation in the scholarship program because their children attended a Christian-run school. The suit made it to a state trial court, which sided with the parents; the state then appealed to the Supreme Court of Montana, where DOJ lodged its Thursday amicus.

The Department’s brief argues that the state violated the First Amendment’s prohibition on government interference in the free exercise of religion by denying the religious students access to the scholarship fund.

“By targeting religious conduct for distinctive, and disadvantageous, treatment, Defendants violate the Free Exercise Clause unless they can show that the discriminatory treatment is supported by interests ‘of the highest order’ and narrowly tailored to achieve those interests. Defendants have made no such showing here,” the brief reads.

The DOJ contends in its brief that simply extending the scholarship fund to all students, including religious ones, would not run afoul of the Constitution, a position Montana had not explicitly disagreed with. The Department then applies the Supreme Court of the United States’ reasoning in last year’s Trinity Lutheran Church of Columbia v. Comer, in which the Court found that denying a church daycare access to state grant money was “odious to our Constitution.”

“The Constitution prohibits states from discriminating based on religion,” said Associate Attorney General Rachel Brand. “Today’s amicus brief is further proof that this administration will lead by example on religious liberty.”

The Department’s brief is an extension of Attorney General Jeff Sessions’s religious liberty priorities, specifically guidance extended by the Department in October on federal religious liberty protections. That guidance stipulated that state governments may not “deny religious schools—including schools whose curricula and activities include religious elements—the right to participate in a voucher program, so long as the aid reaches the schools through independent decisions of parents.”

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