Attorney Dick Komer from the Institute for Justice is currently representing three Montana mothers from Kalispell, who are fighting against a Montana Department of Revenue decision not to allow religious schools to be covered by the state’s recently passed School Choice Program.

Komer says the decision by the Montana Department of Revenue is unprecedented and compared Montana’s reaction to that of the Arizona Department of Revenue, the first state to adopt a school choice tax credit program.

"[Arizona] implemented the legislation as written, and yes, they got sued, and that has happened in half a dozen other states that have implemented these tax credit scholarships. But, none of them have been struck down for including religious schools... all of them have been upheld."

Komer says Montana’s Attorney General has backed away from the lawsuit and that the Department of Revenue has had to seek different attorneys.

"When the rule was proposed by the Department of Revenue, the Attorney General's Office filed comments, which said that the rule was not required by the Montana Constitution and excluding the religious options violates parent's constitutional rights itself. [The Attorney General's Office] told DOr that they wouldn't defend them in court, so DOR is defending itself in court."

According to Komer, the legal debate will come down to two provisions in the Montana State Constitution, which he says have been “grossly misinterpreted” by the Montana Department of Revenue.