News accounts of yesterday’s Supreme Court decision make it seem straightforward. But the hodgepodge of overlapping opinions shows it to be anything but. Indeed, it’s nearly impossible to even come up with an accurate headline to describe the ruling.
The Washington Post goes with “Supreme Court says states that subsidize private education must include religious schools,” which gives the impression of something that seems like a no-brainer. The New York Times goes with “Supreme Court Gives Religious Schools More Access to State Aid,” which makes it sound like legislating from the bench, which it was not. Neither story, interestingly, is on the front page of their respective websites.
SCOTUSBlog’s Amy Howe (“Court rules that religious schools cannot be excluded from state funding for private schools“) summarizes the bizarre complexity of the ruling.
In 2015, the Montana legislature created a scholarship program that provided a dollar-for-dollar tax credit for donations to private scholarship organizations. Those organizations used the money to fund scholarships for children to attend private schools – which, in Montana, are primarily religious schools. In 2018, the Montana Supreme Court struck down the tax-credit program, holding that it violated the state constitution’s ban on aid for churches and religious schools.
Today the U.S. Supreme Court threw out the Montana Supreme Court’s decision. By a vote of 5-4, the justices ruled in Espinoza v. Montana Department of Revenue that the state court’s interpretation of the Montana constitution violated the U.S. Constitution, which protects the free exercise of religion. States are not required to subsidize private education, Chief Justice John Roberts explained in his opinion for the majority. But if they opt to do so, they cannot exclude religious schools from receiving those funds simply because they are religious.
Again, the outcome would seem obvious. There’s a long line of cases requiring equal treatment for secular and religious institutions. Why was it only 5-4?
The Constitution’s free exercise clause protects people who are religious from being treated unequally, as well as from laws that discriminate based on religion, Roberts began. Three years ago, in Trinity Lutheran Church v. Comer, Roberts explained, the court “distilled” its decisions interpreting the free exercise clause into the “unremarkable” conclusion that, when the government denies an otherwise available benefit solely because of the would-be recipient’s religious nature, the denial is subject to the most stringent standard of constitutional review, known as strict scrutiny.
In this case, Roberts continued, the “no-aid” provision in Montana’s constitution clearly prohibits religious schools (and parents who want to send their children to those schools) from receiving funds through the tax credit program solely because the schools are religious. Therefore, it too is subject to the “strictest scrutiny,” and it can only survive if it is “narrowly tailored” to promote “interests of the highest order.” Roberts rejected each of the state’s arguments about the interests that the no-aid provision purportedly promoted. The provision cannot be justified as an extra protection against the separation of church and state, Roberts observed, because the U.S. Constitution’s establishment clause – which prohibits the government from establishing an official religion or favoring one religion over another – already serves that purpose. And although the Montana Department of Revenue asserted that the no-aid provision actually promotes religious freedom – both by ensuring that taxes don’t go to religious groups and by keeping the government out of the religious groups’ business – that is not enough, Roberts wrote, when the provision infringes on the schools’ and parents’ rights to exercise their religion. Finally, Roberts dismissed the state’s suggestion that the no-aid provision promotes the state’s interest in public education as unconvincing, noting that the provision only bars aid to religious schools, not to all private schools.
Again, that seems rather obvious. All five conservative Justices signed on to it, although Thomas offered a separate concurrence which Gorsuch joined and Alito and Gorsuch also filed their own concurrences joined by nobody. Thomas’ is almost cartoonish—arguing that the Establishment Clause prohibits the founding of a state religion and nothing more—and Alito’s rather tangential.
The dissents are rather strange.
Justice Ruth Bader Ginsburg dissented, in an opinion joined by Justice Elena Kagan. She stressed that the Montana Supreme Court’s decision invalidated the entire tax credit program, so that no one is receiving any money for private schools – whether they are secular or religious. Therefore, Ginsburg contended, no one is being treated differently based on religion, and there is no constitutional problem.
That makes no sense whatsoever. The legislature created the program and the state court struck it down. The majority, correctly in my view, contended that the provision of the state constitution that caused it to be struck down is in violation of the First Amendment to the US Constitution and is therefore moot. Ginsburg sidesteps that question entirely, arguing that the case itself is moot because of what the state court did. It’s just bizarre.
Justice Stephen Breyer filed a dissenting opinion that Kagan joined in part. He warned that the “majority’s approach and conclusion in this case” “risk the kind of entanglement and conflict” that the establishment and free exercise clauses “are intended to prevent.” “If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom,” Breyer wrote. Breyer criticized what he characterized as the majority’s bright-line rule that “all distinctions on the basis of religion” “are similarly and presumptively unconstitutional,” as well as the questions that Roberts left open about the limits of today’s ruling – for example, will the state be required to fund religious public schools?
Um, no? Indeed, “religious public schools” would rather clearly be an establishment of religion, which six decades of precedents have prohibited. I see the majority’s ruling here no different than previous rulings which, for example, have held that religious clubs have to be given equal treatment as secular ones.
Justice Sonia Sotomayor filed her own separate dissent in which she described the majority’s decision as “perverse.” “Without any need or power to do so,” she wrote, the Supreme Court “appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.” Although the Supreme Court has acknowledged that the government cannot bar the free exercise of religion, she continued, that “has never meant that a majority could use the machinery of the State to practice its beliefs.”
Her rationale is no different from Ginsburg’s, so it’s not obvious why she wrote separately. But, again, the Court isn’t requiring the state to do anything. The legislature created a fund that treated private schools (most of which are religious in Montana) the same regardless of religion. The state court overturned it and the Supreme Court is reversing the state court and thereby reinstituting the expressed will of the people.If the legislature wanted to end the program of its own accord today, it would absolutely be within its rights to do so.
In a separate SCOTUSBlog analysis (“RIP state “Blaine Amendments” – Espinoza and the “no-aid” principle“) law professor Steven Green , who filed an amicus brief on behalf of the losing side, chides the Court for its messiness.
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.
Heh. He continues.
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.”
Well, no. It subjects it to strict scrutiny, treating discrimination on religious grounds the same way it does discrimination on grounds of race or sex: permissible when it is “narrowly tailored” to promote “interests of the highest order.”
The rest of his argument, which is somewhat long, is interesting. Essentially, he argues that the states were long free to make their own decisions on these matters and that the Supreme Court has slowly clawed these back through an ever-expanding (but sometimes messy and unclear) view of the federal Establishment Clause. He also takes a dive into the anti-Catholic history of many of the no-aid laws, also a subject of great interest to Alito’s concurrence, but dismisses it as behind modern versions.
