Espinoza v. Montana Department of Revenue, No. 18-1195, 591 U.S. ____ (June 30, 2020).
That this case prompted the issuance of six opinions suggests there is no shortage of particularized views of the Religion Clauses among the justices. At best, this can be a sign of healthy disagreement, but at worst, the judges’ divergences disclose an inability to reconcile themselves to the Constitution, to each other, or to both.
What Was In Issue. Montana enacted a law permitting a modest tax credit for contributions to scholarship organizations which in turn made tuition awards to applicants’ schools, most of which were religiously affiliated private schools. The Montana law demanded compliance with the provisions of the Montana constitution that forbids public aid to any institution controlled by any religious entity. Montana Constitution Article X, Section 6(1). Although disfavored by the state attorney general, the Montana tax authority promulgated an administrative regulation (“Rule 1”) to conform administration of the scholarship program to the state constitution’s ‘no-aid’ provision.
Uncertain of their children’s scholarship status, parents sought and were granted relief from Rule 1 by a state trial court, which the Montana Supreme Court reversed in 2018.
The Montana Supreme Court’s View. The state supreme court held that even in the absence of the tax rule, the state constitution prohibited aid to sectarian schools. Unable to find a workable solution that would save the scholarship legislation without offending the state constitution, the court terminated the program in its entirety.
The Montana justices agreed that the administrative rule was beyond the tax authority’s power to promulgate, but disagreed on the state and federal constitutional dimensions of the case. One justice decried needless complexity in current Free Exercise jurisprudence, finding that the scholarship legislation was invalid under the state constitution’s ‘no aid’ provision. Two justices thought the program acceptable and criticized the court’s invalidation of the legislation where no facial state constitutional challenge had been brought. Another judge did not see the state constitution as prohibiting the scholarship program but expressed concern that the application of the state court constitution could offend the federal constitution.
The United States Supreme Court’s Majority View. In the first of six opinions offered by justices, the majority concluded that where general public programs are available to all, “all” cannot be construed to exclude participation based on religion.
The majority observed that First Amendment jurisprudence must consider both what is permitted by the Establishment Clause and what is prohibited by the Free Exercise Clause. Neutral programs that are available to all do not offend the Establishment Clause. That is particularly so here, where citizens choose how to spend scholarship money. The Free Exercise Clause forbids preclusion from any government benefit because of faith. That preclusion is exactly what is in issue in this case. Strict scrutiny analysis is in order where preclusion is based on religious status.
This case is distinguishable from an earlier determination that a state could, based on history and tradition, preclude the use of state funds to pursue preparation for professional ministry. The tradition that supported the prohibition on state funded training for the ministry is ot present in this case, as historic review discloses complexity in approaches.
The state’s argument that it may act to provide a greater separation between church and state under the state constitution than that provided by the deferral constitution fails because an interest that offends the Free Exercise Clause cannot be compelling.
Freedom of religion is not advanced by infringing on First Amendment rights, and this is particularly so where choice in whether to access religious education — or not — is denied. A state might reasonably determine no to engage itself in providing funding to private education, but if a state determines that it will fund private education, it cannot then preclude religious schools from participating.
The majority dispensed with the argument that there can be no free exercise violation where the program in issue is defunct. The program was a legislative creation invalidated by a court as a remedial measure where no other could be found. Central to the state supreme court’s determination is its refusal to recognize that the state ‘no aid’ provision violated the federal Free Exercise Clause. There is no basis upon which to argue that there exists some neutral policy choice or independent state law basis for the state court decision, as its failure to consider the Free Exercise Clause violates the Supremacy Clause.
Justice Thomas, joined by Justice Gorsuch, issued a separate concurrence. Justice Thomas decries the “brooding omnipresence” of current Establishment Clause jurisprudence, which dictates that all religions must be treated equally and religion must be treated as equal to non-religion. The Establishment Clause was intended to inhibit the imposition of any religion by the federal government upon the states. It is not clear whether the establishment clause was seen as an individual right at the time the Fourteenth Amendment was ratified, but even if it was, incorporation would be limited to establishment as it was considered by the founding fathers.
What was understood at the founding was that federal law could not coerce religious orthodoxy and financial support.
The notion that states must be antiseptic respecting religion has no basis in history. Expansive applications of the Establishment Clause cripples the application of the Free Exercise Clause. Ultimately rigid constructions of the religion clauses act as content based restrictions on the government. Hostility toward religion, or a “trendy disdain” for religion which has given rise to “offended observer” claims, has distorted the proper meanings of the religion clauses. Preferencing some constitutional rights over others must be reconsidered so as to permit the free exercise of religion to thrive.
Justice Alito concurred separately. Apparently somewhat sore because his view that origins considerations cannot always be controlling failed to prevail in Ramos v. Louisiana, 591 U.S. ___ (2020), Justice Alito seized the opportunity presented by Espinoza to note that the application of the “original motivation” view espoused in Ramos would be fatal to any effort to uphold the ‘no-aid’ provision in issue here. Justice Alito has published a detailed history of historical antipathy toward religion in the United States, with particular contempt toward Catholicism, which was perceived as threatening to public education, and which gave rise to the sorts of ‘no aid’ provisions enacted and later re-adopted by Montana.
Justice Gorsuch concurred separately. Justice Gorsuch wrote to express his view that confining considerations of impingement on religious freedoms ought not be limited to religious status, for religious belief is almost always accompanied by religious behavior, which is also worthy of constitutional protection.
Justice Ginsburg, joined by Justice Kagan, offered a dissenting opinion. Justice Ginsburg has opined that there can be no Free Exercise Clause violation where the Montana scholarship legislation has been struck down. The majority’s intimation that the Montana ‘no aid’ provision is itself unconstitutional lacks grounding in federalism principles. There was no facial challenge before the court making any opinion from the Supreme Court on that issue improper.
Dismantling the scholarship program worked no injustice on the parents seeking religiously affiliated education for their children, Justice Ginsburg stated, for it left all families on the same footing. Where all are now without state support for any private education, no discrimination exists.
Justice Breyer dissented, joined in part by Justice Kagan. Justice Breyer has advocated for comprehensive, case by case considerations of religion clause matters, finding the crafting and application of tests ill suited to develop a sound jurisprudence. So doing would require more effort, but in his view there is no substitute for sound judgment, which to be informed must consider all that is before the court and all that is implicated by its decision.
Justice Sotomayor wrote a separate dissent. The Court has committed compound errors, in Justice Sotomayor’s view, as it has answered the wrong question incorrectly. Once the Montana Supreme Court invalidated the scholarship program, there was no federal Free Exercise Clause question for the Court to decide. There can be no question of disparate treatment where the purported source of that disparity no longer exists. The Court has issued a decision intimating facial invalidity when that issue was at no point before the Court. In so doing, the Court has exceeded its Article III powers and violated federalism principles.