Steven Green is the Fred H. Paulus Professor of Law and director of the Center for Religion, Law & Democracy at Willamette University College of Law. He filed an amicus brief on behalf of a number of religious groups in support of the respondents in Espinoza v. Montana Department of Revenue.
There is so much contained in the various opinions in Espinoza v. Montana Department of Revenue that a college instructor could use that one case to teach an entire course about American church-state law: discrimination based on religious free exercise; the private choice exception to the establishment clause; whether the establishment clause is incorporated to the states; the history of the common schools; 19th-century anti-Catholicism; and the origins and meanings of state no-aid provisions (state “Blaine Amendments”). If that instructor used Espinoza to teach an accurate account of those various issues, however, it would be a pretty bad course.
Once again, a Supreme Court majority has gone to the edge of the cliff, ready to push the concept of no aid to religion over the side but stopping short. Even though the concept still exists (barely) in the form of making a distinction based on the “use” of tax funds rather than on the “status” of the recipient of those funds, the rule prohibiting government financial support for religion is all but dead. As Justice Ruth Bader Ginsburg observed in her dissent, even though the majority did not reach the ultimate conclusion, its opinion “seems to treat the [state’s] no aid provision itself as unconstitutional.”
I will leave it to other contributors to address whether to prohibit a religious use of a benefit (or to exclude religious entities that will use the benefit in religious ways) is a form of religious discrimination, notwithstanding the establishment clause. I will also let others analyze the majority’s crabbed view of religious freedom, which seems to inflate the free exercise component but ignores the freedom-enhancing aspect of non-establishment, thus allowing for a “play in the joints” (which Justices Stephen Breyer and Elena Kagan emphasized). Because the amicus brief I submitted on behalf of four mainline denominations addressed the history and purposes of state no-aid provisions, this comment will concentrate on that issue, which figures so prominently in the majority opinion and the concurrences of Justices Clarence Thomas and Samuel Alito.
It is not an overstatement to say that the U.S. Supreme Court’s holdings on public financial aid to religious institutions have not been a model of clarity or consistency over the past 75 years. In 1947, the court announced an apparent rule of “no aid” to religion: “No tax in any amount, large or small, can be levied to support any religious activities or institutions.” After declaring that rule, a majority then upheld the aid program in question, eliciting a torrent of criticism from the dissenters. Despite that statement’s absoluteness, the court has long allowed types of neutral and tangible assistance to flow to religious institutions, such as providing secular textbooks to religious schools. Over the past three decades, however, a majority of justices have slowly been dismantling the remaining vestiges of the no-aid principle to authorize forms of divertible aid (e.g., vouchers, tax credits), leaving the establishment clause a shell.
The federal establishment clause is not the only word on the issue of government support for religion, however. States, of course, have their own constitutions, and the vast majority – 48 to be exact – contain provisions that place limits on government funding of religious activity. Some state provisions mirror the language of the federal establishment clause, but a surprising number do not. Instead, states, acting as sovereign entities, chose different and sometimes more exacting language.
Twenty-nine state constitutions contain “no-compelled support” clauses, modeled chiefly on Pennsylvania’s 1776 constitution, which provided that no person could “be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent.” This reflected an early revulsion against the government funding of religious activity, as Breyer’s opinion discusses. In addition, 27 state constitutions restrict public appropriations or draws from state treasuries to “public purposes” or for “public uses,” or require them to remain under “public control.” And finally, 38 state constitutions contain provisions that prohibit public monies being spent in aid of religious institutions or religious education. These no-aid to religion clauses are commonly called state “Blaine Amendments” by detractors.
It was this last type of provision – a no aid to religion clause – that was at issue in Espinoza. Montana’s no-aid provision is one of the stricter and more detailed clauses of this genre. It prohibits the “payment from any public fund or monies, or grant of lands or other property for any sectarian purpose or to aid any church, school … controlled in whole or in part by any church, sect, or denomination.” It was first adopted in 1888, and then readopted in 1972.
The Supreme Court has sent mixed signals about the propriety of these state provisions, as well. In Locke v. Davey (2004), the court, in an opinion by Chief Justice William Rehnquist (!), upheld a state’s reliance on its stricter no-aid provision to prohibit an applicant from using a state scholarship for a theology degree, highlighting the “play in the joints” between the free exercise and establishment clauses and the federal and state constitutions. Then, three terms ago in Trinity Lutheran Church v. Comer, the court allowed a state grant to a church for an upgrade of its facilities, now brushing aside that state’s no-aid provision, calling it simply a “policy preference” that failed to be compelling. Today, the court expands on Trinity Lutheran not only by subordinating the values of such provisions but by condemning their origins and purposes.
Detractors of the no-aid rule have had state no-aid provisions in their crosshairs for decades. For more than 20 years they have urged the Supreme Court to strike the no-funding provisions on grounds that they were motivated by religious animus against Catholicism, arguing that many arose at a time of religious conflict between Protestants and Catholics. These detractors of the no-aid provisions were able to secure the ear of the plurality in Mitchell v. Helms (2000), in which Thomas opined that the no-funding “doctrine [was] born of bigotry, and should buried now.”
Detractors base their arguments on the failed Blaine Amendment of 1876, which came close to amending the U.S. Constitution to insert a specific no-aid provision. Anti-Catholic rhetoric ran high in the public debates over its enactment (less so in the legislative debates). Although that proposal fell short of the necessary two-thirds vote in the Senate, 21 states adopted no-funding provisions in the 35 years following the Blaine Amendment. Seeing a connection between the Blaine Amendment and the state no-funding provisions, detractors have sought to transfer the taint of anti-Catholicism from the former and use that to discredit the latter. They finally succeeded today.
What detractors usually fail to mention is that 15 states adopted no-funding provisions prior to the Blaine Amendment, with several arising in states with little or no discernible religious conflict. They also arose at a time that states were establishing their public schools and were seeking to guarantee the financial security of those fledgling schools. Several of the post-1876 provisions were based on these earlier state constitutions, not on the Blaine Amendment; the drafters of Montana’s provision borrowed from the California and Colorado constitutions. Finally, as we demonstrated in our amicus brief, there is a lack of evidence of anti-Catholic animus at the time Montana drafted its initial constitution. Thus, it is historically inaccurate to condemn all state no-aid provisions as remnants of anti-Catholic animus, as Alito does.
The majority and concurrences run roughshod over this historical record. While acknowledging that history is “complex,” those opinions provide a simplified, if not particularized, rendition of the 19th-century “School Question” controversy. All nuances about the development of nonsectarian schooling and its evolution into a more secular entity, and the multiple rationales for barring public funding of religious education – ensuring the financial stability of the fledgling public schools, public accountability, public control over school funds, and, oh yes, maintaining church-state separation – are lost in the Espinoza accounts of the history. Equally troubling is the justices’ presumption, if not hubris, that they can declare the significance of a historical development – particularly one that is contested – and then settle it as a constitutional rule. The judicial adversarial context is the worst place to discover the significance of a historical event.
So, what remains of the no-funding provisions in a majority of state constitutions? The majority opinion effectively says they cannot be enforced, at least when they are directed at preventing aid based on the character or status of the recipient. As Breyer notes, one can interpret the language of these provisions as directed at use, not necessarily status, but most lower courts will read the majority opinion otherwise. So not only will most state no-aid provisions be unenforceable, but so likely will be no-compelled-support and public-control clauses, all of which make distinctions based on the status of the recipient. But more than anything, the majority and concurring opinions have now tainted all no-aid provisions, and the more general principle against government funding of religion, with the aura of discrimination. A central premise of non-establishment of religion has been turned on its head.