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Symposium: What’s “the use” of the Constitution’s distinctive treatment of religion if it is disregarded as discrimination?

Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty, which submitted an amicus brief in support of the respondents in Espinoza v. Montana Department of Revenue. 

The Supreme Court’s decision in Espinoza  v. Montana Department of Revenue purports to be “unremarkable,” particularly in light of Trinity Lutheran v. Comer, decided just three years ago. But the multiple opinions – four for the majority and three dissenting opinions – belie that assertion and demonstrate the significance of this case. In short, the Espinoza decision continues a disturbing trend that devalues a core aspect of our religious liberty tradition – the ban on government aid to religion.

By a vote of 5-4, the Supreme Court held that the free exercise clause prohibits Montana from applying its state constitution to avoid funding religious schools through a tax credit program. Montana’s constitution, like a majority of state constitutions, prevents government funding of religion by restricting aid to religious institutions. Typically, such state constitutional provisions are written with more specificity and can be interpreted as more stringent protections for religious liberty than the federal constitution. As Steven Green, the country’s leading legal historian on religious liberty and state constitutions, explains elsewhere in this symposium, the no-aid principle is expressed in a variety of state constitutional provisions.

Though the language and historical circumstances of the state constitutions vary, the roots of the no-aid principle stem from the Founding era. Because many no-funding provisions predated the advent of significant Catholic immigration, the religious liberty interests they serve cannot properly be dismissed as related to any anti-religious bias. Instead, the no-aid principle has long been recognized as critical to understanding the federal establishment clause and how it protects religious liberty, along with the free exercise clause. Religious liberty advocates, including those who serve religious denominations, recognize that the rule reflects the distinctive treatment of religion in constitutions. In Espinoza, the Supreme Court disregards the “complex history” of the no-aid rule and reduces a variety of religious liberty protections to markers of discrimination that are presumptively unconstitutional.

What remains of the no-funding rule begins with identifying the boundaries of public and private programs and defining the distinction between religious status and uses.

Twenty pages into the 22-page majority opinion, Chief Justice John Roberts identifies an important limitation on the court’s decision: “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.” That caveat mitigates a decision that otherwise virtually eliminates the no-aid to religion rule found in numerous state constitutions. Still, the Espinoza decision provides a huge boost to those who seek public funds for private religious schools.

The Supreme Court’s move toward a more lenient view of aid to religious institutions under the establishment clause is well-known, but state laws have long provided a bulwark against the diversion of public funds to religion. It has been nearly two decades since the U.S. Supreme Court first held 5-4 that the establishment clause was not offended by a school voucher program in Zelman v. Simmons-Harris. That decision upheld a program of neutral aid whereby public money would flow to eligible private schools based on the “true private choice” of individual parents. One eligibility requirement noted in that decision was that participating private schools – whether religious or secular – had to agree not to discriminate on the basis of religion. Prohibitions against direct funding of religious activities by government remained in place as a vital concern of the establishment clause and state constitutions.

Of course, the Zelman decision did not hold that Ohio’s voucher program was constitutionally required or suggest that it was a good idea. In fact, two years after Zelman, the court in Locke v. Davey rejected a free exercise challenge to the state of Washington’s scholarship program that was restricted for the study of theology. In a 7-2 decision, the court recognized the state’s interest in avoiding the funding of religion. That case demonstrated “the play in the joints” the Supreme Court has long recognized that allows states to guard against government involvement of religion in ways that are permissible, but not required by the federal constitution. But as others note, that space has now been severely limited.

The rule in Locke v. Davey was severely undercut in Trinity Lutheran, the “church playground case.” There, the Supreme Court held that the free exercise clause prohibited Missouri’s policy of excluding churches from a public benefit program that provided grants to refurbish playgrounds using recycled tires. As I noted at the time, the ruling was decidedly narrow – involving a grant program that was reasonably viewed as entirely secular – but also deeply troubling. In an opinion written by Roberts, the court ignored the historical and practical basis for preventing government funding of churches. Instead of recognizing that treating churches in a distinct way has long been part of a religious liberty tradition that protects churches, the court found Missouri’s rule “odious” to our tradition.

In Trinity Lutheran, the court distinguished Locke v. Davey as involving the legitimate state interest in avoiding the funding of religious uses of government money – specifically, training for ministry. But the court held that Missouri violated the free exercise clause because it had excluded Trinity Lutheran Church from a grant program based on its status. The church had been denied participation in a secular grant program “solely because it was a church.”

As Green and others have demonstrated, prohibitions on the funding of churches in state constitutions serve the purpose of avoiding the funding of religion, which prevents government entanglement in churches. Churches are typically organized for religious purposes, and avoiding government funding means avoiding government decisions about which aspects of a church’s ministries are deemed religious and which may be sufficiently secular and separable to apply for a government grant.

Although the majority of the court saw things differently, a plurality in Trinity Lutheran appeared to limit the decision with a significant footnote that stated: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” While rejecting the no-aid to churches rule in the context of a playground improvement program, the court did not say that the free exercise clause requires government funding of religious activities.

In Espinoza, the court likewise finds the application of a state’s no-aid rule to violate the free exercise clause. This time the aid at issue consisted of scholarships for tuition at private religious schools. That context makes no difference to the majority. In this decision, the court continues the shell game that it formulated in Trinity Lutheran. The object of the game is to find and prohibit “discrimination against religion.”  The problem, as Justice Stephen Breyer notes in dissent, is that “we all recognize that the First Amendment prohibits discrimination against religion.” And our history and precedents also “reflect a deep concern” about state funding for religious teaching that the majority fails to acknowledge. Breyer’s dissent, as well as Justice Sonia Sotomayor’s separate dissent, recognizes that religion is treated in a distinct way in our constitutional order that has nothing to do with discrimination. Instead, both federal and state constitutional provisions protecting religious liberty are designed to advance religious liberty by keeping the institutions of religion and government separate. State constitutional provisions have likewise served such valid purposes.

Espinoza extends Trinity Lutheran’s rule to the context of government funding of religious education. It rejects Montana’s no-aid rule as discrimination based on religious status and affirmatively avoids suggesting that a different rule would apply “to discrimination against religious uses of government aid.” Justice Neil Gorsuch devotes a separate concurring opinion to attack that distinction and emphasize that religious uses pervade the record.

The consequences remain to be seen, but the step from playground resurfacing grants to religious education is a significant one. It shifted the majority from a vote of 7-2 to 5-4. The fractured opinions demonstrate the deep divisions on the Supreme Court about how best to balance long-standing provisions that undergird our country’s promise of religious liberty for everyone. The court’s opinion produces a clear rule with regard to some forms of government funding, which some will applaud in an area of law that is often criticized for being confusing. But by viewing the distinctive treatment of religion through the lens of “discrimination,” the court threatens to harm religious liberty. After all, our constitutional tradition was built on the principles of both no establishment and free exercise. As Breyer warns in dissent, the court’s “rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited.”

Recommended Citation: Holly Hollman, Symposium: What’s “the use” of the Constitution’s distinctive treatment of religion if it is disregarded as discrimination?, SCOTUSblog (Jul. 2, 2020, 10:14 AM),