Espinoza v. Montana Dept. of Revenue (2020)

Summary

This case involves the interaction of the religion clauses of the First Amendment—the Establishment Clause and the Free Exercise Clause. One key area of debate under the First Amendment’s Establishment Clause is over government funding of religious institutions. In this area, scholars have divided between two opposing interpretations of the Establishment Clause. One set of scholars argues that the government must be neutral between religious and non-religious institutions that provide education or other social services. The other set argues for a bright-line rule, arguing that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine. The Supreme Court itself has moved between these positions over time. Initially, the Court followed the first approach. Then, in the 1970s and 1980s, it shifted to the second one. And, finally, in more recent years, the Court has moved back to the first approach. This case represents a recent example of the first approach—calling for government neutrality.  In addition, this case addresses a claim of religious discrimination under the First Amendment’s Free Exercise Clause. Montana started a scholarship program to assist parents with private school tuition and provided tax credits for donations. The state prohibited religious school students from receiving any of these scholarships. Parents challenged this restriction, arguing that the state was discriminating against religious schools and violating the First Amendment’s Free Exercise Clause. In a 5-4 decision, the Supreme Court ruled that discriminating against schools based on their religious status violates the First Amendment. The Court also concluded that using state scholarship funds to support students at religious schools did not violate the First Amendment’s Establishment Clause.

Excerpt: Majority Opinion, Chief Justice John Roberts

The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision . . . .

The Religion Clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” We have recognized a “play in the joints between what the Establishment Clause permits and the Free Exercise Clause compels.” . . . Here, the parties do not dispute that the scholarship program is permissible under the Establishment Clause. Nor could they. We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. . . . Any Establishment Clause objection to the scholarship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools. . . . The Montana Supreme Court, however, held as a matter of state law that even such indirect government support qualified as “aid” prohibited under the Montana Constitution.

The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program. . . . [W]e assess whether excluding religious schools and affected families from that program was consistent with the Federal Constitution. 

The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” . . . Those “basic principle[s ]” have long guided this Court. . . .

Most recently, [we have] distilled these and other decisions to the same effect into the “unremarkable” conclusion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny.” . . .

Here . . . Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. . . .The Montana Constitution discriminates based on religious status . . . .

[T]he provision [in the Montana state constitution] “impose[s] special disabilities on the basis of religious status” and “condition[s] the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.” . . . To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges “inevitably deters or discourages the exercise of First Amendment rights.” . . . The Free Exercise Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqualifying the religious from government aid as Montana did here. . . . Such status-based discrimination is subject to “the strictest scrutiny.” . . . 

The Montana Supreme Court asserted that the no-aid provision serves Montana’s interest in separating church and State “more fiercely” than the Federal Constitution. . . . But “that interest cannot qualify as compelling” in the face of the infringement of free exercise here. . . . A State’s interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.” . . . 

[Montana], for its part, asserts that the no-aid provision actually promotes religious freedom. In [its] view, the no-aid provision protects the religious liberty of taxpayers by ensuring that their taxes are not directed to religious organizations, and it safeguards the freedom of religious organizations by keeping the government out of their operations. . . . An infringement of First Amendment rights, however, cannot be justified by a State’s alternative view that the infringement advances religious liberty. Our federal system prizes state experimentation, but not “state experimentation in the suppression of free speech,” and the same goes for the free exercise of religion. . . . 

Furthermore, we do not see how the no-aid provision promotes religious freedom. As noted, this Court has repeatedly upheld government programs that spend taxpayer funds on equal aid to religious observers and organizations, particularly when the link between government and religion is attenuated by private choices. A school, concerned about government involvement with its religious activities, might reasonably decide for itself not to participate in a government program. But we doubt that the school’s liberty is enhanced by eliminating any option to participate in the first place.

[Montana’s] argument is especially unconvincing because the infringement of religious liberty here broadly affects both religious schools and adherents. Montana’s no-aid provision imposes a categorical ban—“broadly and strictly” prohibiting “any type of aid” to religious schools. . . . 

And the prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them. Drawing on “enduring American tradition,” we have long recognized the rights of parents to direct “the religious upbringing” of their children. . . . Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. . . . But the no-aid provision penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason. . . .

Excerpt: Dissent, Justice Stephen Breyer

The First Amendment’s Free Exercise Clause guarantees the right to practice one’s religion. At the same time, its Establishment Clause forbids government support for religion. Taken together, the Religion Clauses have helped our Nation avoid religiously based discord while securing liberty for those of all faiths.

This Court has long recognized that an overly rigid application of the Clauses could bring their mandates into conflict and defeat their basic purpose. . . . And this potential conflict is nowhere more apparent than in cases involving state aid that serves religious purposes or institutions. In such cases, the Court has said, there must be constitutional room, or “play in the joints,” between “what the Establishment Clause permits and the Free Exercise Clause compels.” . . . Whether a particular state program falls within that space depends upon the nature of the aid at issue, considered in light of the Clauses’ objectives.

The majority barely acknowledges the play-in-the-joints doctrine here. It holds that the Free Exercise Clause forbids a State to draw any distinction between secular and religious uses of government aid to private schools that is not required by the Establishment Clause. The majority’s approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. I consequently dissent. . . .

We all recognize that the First Amendment prohibits discrimination against religion. At the same time, our history and federal constitutional precedent reflect a deep concern that state funding for religious teaching, by stirring fears of preference or in other ways, might fuel religious discord and division and thereby threaten religious freedom itself. . . . The Court has consequently made it clear that the Constitution commits the government to a “position of neutrality” in respect to religion. . . .

The inherent tension between the Establishment and Free Exercise Clauses means, however, that the “course of constitutional neutrality in this area cannot be an absolutely straight line.” . . . Indeed, “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.” . . . 

That, in significant part, is why the Court has held that “there is room for play in the joints” between the Clauses’ express prohibitions that is “productive of a benevolent neutrality,” allowing “religious exercise to exist without sponsorship and without interference.” . . . It has held that there “are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” . . . And that “play in the joints” should, in my view, play a determinative role here.

It may be that, under our precedents, the Establishment Clause does not forbid Montana to subsidize the education of petitioners’ children. But, the question here is whether the Free Exercise Clause requires it to do so. The majority believes that the answer to that question is “yes.” It writes that “once a State decides” to support nonpublic education, “it cannot disqualify some private schools solely because they are religious.” . . .  

It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem . . . is what petitioners “propos[e] to do—use the funds to” obtain a religious education. . . .

Even if the schools’ status were relevant, I do not see what bearing the majority’s distinction could have here. There is no dispute that religious schools seek generally to inspire religious faith and values in their students. How else could petitioners claim that barring them from using state aid to attend these schools violates their free exercise rights? Thus, the question in this case . . . boils down to what the schools would do with state support. And the upshot is that here . . . we confront a State’s decision not to fund the inculcation of religious truths.

The majority next contends that there is no “historic and substantial tradition against aiding” religious schools “comparable to the tradition against state-supported clergy invoked” [in an earlier case] . . . . But the majority ignores the reasons for the founding era bans that we relied upon in [in that earlier case].

“Perhaps the most famous example” . . . is the 1786 defeat of a Virginia bill (often called the Assessment Bill) that would have levied a tax in support of “learned teachers” of “the Christian Religion.” . . . In his Memorial and Remonstrance against that proposal, James Madison argued that compelling state sponsorship of religion in this way was “a signal of persecution” that “degrades from the equal rank of citizens all those whose opinions in religion do not bend to those of the Legislative authority.” . . . Even among those who might benefit from such a tax, Madison warned, the bill threatened to “destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced among its several sects.” . . .  

The opposition galvanized by Madison’s Remonstrance not only scuttled the Assessment Bill; it spurred Virginia’s Assembly to enact a very different law, the Bill for Religious Liberty drafted by Thomas Jefferson. . . .

Like the Remonstrance, Jefferson’s bill emphasized the risk to religious liberty that state-supported religious indoctrination threatened. “[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves,” the preamble declared, “is sinful and tyrannical.” . . . The statute accordingly provided “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” . . . Similar proscriptions were included in the early constitutions of many States. . . .

I see no meaningful difference between the concerns that Madison and Jefferson raised and the concerns inevitably raised by taxpayer support for scholarships to religious schools. In both instances state funds are sought for those who would “instruc[t] such citizens, as from their circumstances and want of education, cannot otherwise attain such knowledge” in the tenets of religious faith. . . . In both cases, that would compel taxpayers “to support the propagation of opinions” on matters of religion with which they may disagree, by teachers whom they have not chosen. . . . And, in both cases, the allocation of state aid to such purposes threatens to “destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced among its several sects.” . . .

The majority argues that at least some early American governments saw no contradiction between bans on compelled support for clergy and taxpayer support for religious schools or universities. . . . That some States appear not to have read their prohibitions on compelled support to bar this kind of sponsorship, however, does not require us to blind ourselves to the obvious contradiction between the reasons for prohibiting compelled support and the effect of taxpayer funding for religious education. Madison and Jefferson saw it clearly. They opposed including theological professorships in their plans for the public University of Virginia and the Commonwealth hesitated even to grant charters to religiously affiliated schools. . . .

Nor can I see how it could make a difference that the Establishment Clause might permit the State to subsidize religious education through a program like Montana’s. The tax benefit here inures to donors, who choose to support a particular scholarship organization. That organization, in turn, awards scholarships to students for the qualifying school of their choice. The majority points to cases in which we have upheld programs where, as here, state funds make their way to religious schools by means of private choices. . . . [H]owever, that does not answer the question whether providing such aid is required. . . .

Neither does it address related concerns that I have previously described. Private choice cannot help the taxpayer who does not want to finance the propagation of religious beliefs, whether his own or someone else’s. It will not help religious minorities too few in number to support a school that teaches their beliefs. And it will not satisfy those whose religious beliefs preclude them from participating in a government-sponsored program. Some or many of the persons who fit these descriptions may well feel ignored—or worse—when public funds are channeled to religious schools. . . . These feelings may, in turn, sow religiously inspired political conflict and division—a risk that is considerably greater where States are required to include religious schools in programs like the one before us here. And it is greater still where, as here, those programs benefit only a handful of a State’s many religious denominations. . . .

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. . . .

[W]hat are the limits of the Court’s holding? The majority asserts that States “need not subsidize private education.” . . . But it does not explain why that is so. If making scholarships available to only secular nonpublic schools exerts “coercive” pressure on parents whose faith impels them to enroll their children in religious schools, then how is a State’s decision to fund only secular public schools any less coercive? Under the majority’s reasoning, the parents in both cases are put to a choice between their beliefs and a taxpayer-sponsored education.

Accepting the majority’s distinction between public and nonpublic schools does little to address the uncertainty that its holding introduces. What about charter schools? States vary widely in how they permit charter schools to be structured, funded, and controlled. . .  How would the majority’s rule distinguish between those States in which support for charter schools is akin to public school funding and those in which it triggers a constitutional obligation to fund private religious schools? The majority’s rule provides no guidance, even as it sharply limits the ability of courts and legislatures to balance the potentially competing interests that underlie the Free Exercise and Antiestablishment Clauses. . . . 

It is not easy to discern “the boundaries of the neutral area between” the two Religion Clauses “within which the legislature may legitimately act.” . . . And it is more difficult still in cases, such as this one, where the Constitution’s policy in favor of free exercise, on one hand, and against state sponsorship, on the other, are in conflict. In such cases, I believe there is “no test-related substitute for the exercise of legal judgment.” . . . That judgment “must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes.” . . . Here, those purposes, along with the examples set by our [previous] decisions . . . , lead me to believe that Montana’s differential treatment of religious schools is constitutional. “If any room exists between the two Religion Clauses, it must be here.” . . .
 

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