Fides et ratio, or “faith and reason,” was the penultimate encyclical of Pope John Paul II. He argued that faith and reason do—and must—go hand in hand. Doubtless, among those who would agree with this principle are the Montana parents who sued in Espinoza v. Montana Dept. of Revenue to send their children to parochial schools after winning tax-credit-funded scholarships. At first, the parents lost; the Montana Supreme Court invalidated the entire scholarship program. Last week, however, the U.S. Supreme Court reversed that decision by a 5:4 vote, concluding that it violates the Free Exercise Clause of the First Amendment to strike down the program under a version of the Blaine Amendment in the Montana state constitution. Here’s my analysis.
Case Background
In 2015, Montana established a scholarship program for elementary, middle, and high school students. Under the program, the State gives up to $150 in tax credits to private citizens and businesses who donate to private, nonprofit scholarship organizations. Those nonprofits, in turn, use the donations as scholarship funds and award those scholarships to families whose children wish to go to private schools. Scholarship-winning families may use their award at any “qualified education provider,” which Montana broadly defines to include virtually all private schools in the state—secular and parochial.
However, Montana’s State Constitution says that the State “shall not make any direct or indirect appropriation . . . to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.” This is a form of the failed “Blaine Amendment” to the U.S. Constitution: On the heels of 19th Century anti-Catholic sentiment, House Speaker James G. Blaine sought to add an amendment to the U.S. Constitution barring federal funds from going to religious schools. Though his proposal failed, several states (like Montana) have since written similar provisions into their state constitutions.
With Montana’s No-Aid provision no doubt in mind, the Montana Department of Revenue in December 2015 promulgated an administrative rule barring scholarship-winning families from using their funds at religious institutions. Cue this lawsuit, filed by several parents whose children won scholarships and sought to enroll at the Stillwater Christian School in Kalispell, MT. In Montana’s highest court, the parents lost. The Montana Supreme Court struck down the entire scholarship program, relying on the state constitution’s No-Aid provision and arguing that state funds (the tax credits) were ending up in the hands of religious institutions. The parents appealed to the Supreme Court.
Last week, Chief Justice Roberts, writing for a five-Justice majority, reversed the Montana Supreme Court’s decision. He holds that the application of Montana’s No-Aid provision violates the Free Exercise Clause of the First Amendment.
Chief Justice Roberts’ Majority Opinion
After recapping the case’s history, Roberts starts by clearing up a misconception about this case. It is not about the Establishment Clause. No party here argues that the scholarship program or its invalidation amounts to an “establishment” of religion on Montana’s part. “Nor could they,” Roberts asserts. “We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations,” like the families and parochial schools here, “benefit from neutral government programs,” like the Montana scholarship program (citing Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), Locke v. Davey (2004), and Rosenberger v. Rector and Visitors of Univ. of Virginia (1995)).
Instead, this is purely a Free Exercise case. The parents argued that Montana, by using its No-Aid provision to scuttle the entire scholarship program, infringed their right to exercise their religious beliefs freely. Roberts thus makes clear that the question to be answered is whether the Free Exercise Clause precluded the Montana Supreme Court from canceling the scholarship program as it did. (Roberts, as we know, answers “yes.”)
The Free Exercise Clause “‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status,'” Roberts explains (quoting Trinity Lutheran). As Trinity Lutheran recognized, the Court’s application of these principles over time has yielded an “unremarkable” conclusion: “disqualifying otherwise eligible recipients from a public benefit ‘solely because of their religious character’ imposes ‘a penalty on the free exercise of religion.'” For example, in Trinity Lutheran, Missouri established an environmental grant program under which certain organizations could apply for funds to resurface playgrounds with old tire scraps. However, Missouri barred all religious institutions from participating in the program. Trinity Lutheran Church met each of the qualifications to apply, except for the fact that it was a religious organization. The Court held that Missouri violated the Free Exercise Clause when it barred Trinity Lutheran from applying for the publicly-available grant program on no other basis than Trinity Lutheran’s status as a church.
Montana’s policy toward the scholarship program fits the Trinity Lutheran bill, argues Roberts. The “public benefit” here is the scholarship funds (and private schools’ reception of those funds). Under the terms of the program, any private school in Montana is eligible to receive those funds—except religious schools. The No-Aid provision therefore “disqualif[ies]” parochial schools from the neutral scholarship program for no other reason than their “religious character” and flouts the baseline principle in Trinity Lutheran.
To escape this conclusion, the Montana Department of Revenue advanced a defense that has been the subject of much scholarly discussion. The No-Aid provision doesn’t prohibit a religious school from receiving the program’s funds because of the school’s status, the thought goes; it excludes them because of how the funds will be used (namely, to promote religious education). This same argument was raised as a defense in Trinity Lutheran. In short, it attempts to carve out an exception to Trinity Lutheran‘s principle: If a state withholds an otherwise generally-available public benefit from a religious entity because of how the benefit will be used by or at the religious entity—not because the entity is religious—the state doesn’t violate the Free Exercise Clause.
The Court declined to opine on the merits of that argument in Trinity Lutheran, and Roberts declines again here. He doesn’t need to; Montana’s own laws belie this defense. With regard to state constitutional law, the No-Aid provision clearly says the State shall not give public funds to religious institutions, period. The provision is even entitled, “Aid Prohibited to Sectarian Schools.” It doesn’t say the State will withhold funds from religious institutions because, say, those funds might be used to purchase religious textbooks or further the teaching of religious dogma. It simply identifies “religious institutions” as a class and ostracizes those within that class. And with regard to caselaw, the Montana Supreme Court reiterated that the purpose of the No-Aid provision is to turn off the state’s financial spigot where “sectarian,” “religiously affiliated,” or “[church-]controlled” institutions are concerned. The No-Aid provision therefore singles out religious institutions by name, not by effects.
At base, Roberts thinks the Montana Supreme Court ran directly against the Trinity Lutheran grain. The court’s decision “impose[s] special disabilities on the basis of reli- gious status” and “condition[s] the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.” In other words, what does the Stillwater Christian School have to do to be eligible to receive scholarship funds? Drop the “Christian” from its name (and Christianity from its curriculum). This is precisely what the Free Exercise Clause is designed to safeguard against.
Having established that the application of the No-Aid provision to Montana parochial schools discriminates on the basis of those schools’ religious character, Roberts explains that the provision can survive only by passing strict scrutiny. That is, Montana must show that the No-Aid provision, as applied here, serves a “compelling state interest” and is “narrowly tailored” to serve that interest (R.A.V. v. City of St. Paul (1992)).
Montana is unsuccessful. To start, what is Montana’s “compelling” interest? Two answers have been offered: First, the Montana Supreme Court said the interest was the separation of church and state—indeed, a separation “more fierce[]” than what the U.S. Constitution provides. But Widmar v. Vincent (1981) warned against this kind of argument: A State’s interest “in achieving [such] greater separation of church and State . . . is limited by the Free Exercise Clause.” And where the actualization of that interest infringes the rights of persons under the Free Exercise Clause, that interest cannot be “compelling,” as noted in Trinity Lutheran. In other words, a State cannot really claim it has a compelling interest in strengthening a constitutional right by enfeebling another.
Second, the Department of Revenue argued Montana has a compelling interest in ensuring religious freedom, and that the application of the No-Aid provision actually does just that. More specifically, Montana says it wants to guarantee that its taxpayer dollars are not funneled to religious organizations, as that would diminish the rights of the taxpayers to support religious organizations as they see fit. Roberts admits this may be a valid state interest. But is it compelling? No, he says. Again, such an interest seeks to protect some Montana citizens’ free exercise rights by sacrificing the same rights of others. Plus, can it really be said that the No-Aid provision actually promotes religious freedom? Roberts doesn’t think so. “[W]e doubt that the school’s liberty is enhanced by eliminating any option to participate [in a public benefit program] in the first place,” he writes.
Even assuming that there is some compelling state interest in play here, Roberts says the No-Aid provision is not “narrowly tailored.” It imposes a “categorical ban.” In the Montana Supreme Court’s own words, it “broadly and strictly” proscribes “any type of [state] aid” to any type of religious institution (emphasis in original). Quite the opposite of a “narrow” tailoring, both linguistically and in practice.
To sum up, Roberts holds that the Montana Supreme Court erred in striking down the state’s scholarship program. Because the court relied on the state constitution’s No-Aid provision, Montana discriminated against religious institutions based on their religious nature and violated their Free Exercise rights. Justices Thomas, Alito, Gorsuch, and Kavanaugh agree.
Concurrences
Justice Thomas
Justice Thomas penned a nine-page concurrence. He fully agrees with Roberts’ reasoning. He writes separately to rehash his long-held view that the Establishment Clause does not apply to the states. “[A]t the founding,” he explains, “the Clause served only to protect States, and by extension their citizens, from the imposition of an established religion by the Federal Government” (emphasis in original). In other words, Thomas argues the federal government cannot pass laws “respecting an establishment of religion,” but state governments are free to do so. Presumably, Thomas would vote to overturn Everson v. Board of Education (1947), which incorporated the Establishment Clause against the states. Intriguingly, Justice Gorsuch joined Thomas’ concurrence, indicating that two current Justices view the Establishment Clause as wielding a very short blade.
Justice Alito
Justice Alito wrote a 13-page concurrence. Similarly, he joins Roberts’ opinion; he devotes his own ink to examining the history of the Montana No-Aid provision (and others like in other states). As mentioned above, it was modeled after the Blaine Amendment, a product of the anti-Catholic immigration movements in the 19th Century.
The savvy Court-watcher might be surprised: Earlier this year, in Ramos v. Louisiana, the Court held that non-unanimous jury conviction laws in Louisiana and Oregon were unconstitutional. Gorsuch, for the majority, underscored that those laws found their origins in race discrimination and Jim Crow. Alito, in dissent, arraigned Gorsuch for suggesting that the racial animus marking those laws’ past contribute to their unconstitutionality. So why does Alito reverse his position here and say the anti-Catholic history of state Blaine Amendments matter?
Alito’s answer is simple: “I lost.” “Ramos is now precedent,” he explains, à la Chief Justice Roberts last week in June Medical Services v. Russo. “If the original motivation for the laws mattered there, it certainly matters here.” Well answered, Your Honor.
Justice Gorsuch
Justice Gorsuch authored an eight-page concurrence to offer a few more words on the “status versus use” discussion under Trinity Lutheran. In short, Gorsuch isn’t so sure there can even be a “use” exception to Trinity Lutheran. “The Constitution forbids laws that prohibit the free exercise of religion,” he explains. “That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly” (emphasis in original). So, Gorsuch is skeptical that one could defend a no-aid provision even on the ground that it discriminates based on how the state funds will be used.
Dissents
Justice Ginsburg
Justice Ginsburg, joined by Justice Kagan, wrote a brief dissent. Ginsburg thinks this case differs from Trinity Lutheran in one fundamental way: Trinity Lutheran involved differential treatment and this case does not. But wait, you might say: this case involves differential treatment! Religious schools cannot participate in Montana’s scholarship program, but secular schools can. Hence, differential treatment!
Not so, Ginsburg says, because the Montana Supreme Court’s decision struck down the program whose administration led to the disparate treatment. Based on the court’s decision, “secular and sectarian schools alike are ineligible for benefits,” she writes, “so the decision cannot be said to entail differential treatment based on petitioners’ religion.” Plus, she points out that religious families are still free to send their children to parochial schools. And even though they no longer have the luxury of applying for scholarship aid, neither do secular families. Thus, Ginsburg does not think Trinity Lutheran is controlling.
Justice Breyer
Justice Breyer penned the longest dissent at just over 19 pages. Joined (in part) by Kagan, Breyer disagrees on the merits of the case.
Quoting the famous phrase from Locke v. Davey (2004), there is “room for play in the joints” between what the Establishment Clause permits and what the Free Exercise Clause compels. Put differently, there are “some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.”
Breyer thinks this play-in-the-joints is especially important here. “It may be that, under our precedents, the Establishment Clause does not forbid Montana to subsidize the education of petitioners’ children,” Breyer writes (emphasis in original). “But, the question here is whether the Free Exercise Clause requires it to do so.” Roberts, as we know, says Montana is so required if it chooses to support private education. Breyer disagrees.
This case is more similar to Locke, not Trinity Lutheran, Breyer argues. Recall that in Trinity Lutheran, Missouri excluded religious institutions from a playground-resurfacing grant program that had nothing to do with religion or education at all. Locke was different. There, Washington offered a scholarship program to fund higher education, but it stipulated that no scholarship funds could be put toward a theological or devotional degree. The Locke Court upheld the program, concluding that Washington had a compelling interest in ensuring that no state funds furthered the pursuit of religious education.
Breyer is hard-pressed to find a meaningful distinction between this case and Locke. How is it true that this case is more like that of a state “paying to fix up a playground” (Trinity Lutheran) than it is of a state “paying for a degree in theology” (Locke)? (If you haven’t caught on yet, Breyer is maneuvering his way toward the “status versus use” exception to Trinity Lutheran.)
We have seen how Roberts would answer Breyer’s question: Montana has singled out religious institutions because of their status, not because of how the scholarship funds may be used. But Breyer doesn’t think this is the end of the discussion. This case was filed by the Montana parents, not the religious schools. It concerns the parents’ claim that their free exercise rights have been violated. Thus, Breyer says, this case deals with the same problem as that in Locke: what the families “propos[e] to do—use the funds to” obtain a religious education” (emphasis in original). The problem is not the status of those excluded from the program; it’s how the program’s benefits will be used.
Breyer would therefore apply Locke to this case and hold that Montana has not violated the free exercise rights of the families involved by disqualifying religious schools from the scholarship program. The Court has for decades “drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit,” he writes. “I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom.”
Justice Sotomayor
Justice Sotomayor penned a forceful 11-page dissent. She reiterates Ginsburg’s nifty argument that, since the entire scholarship program no longer exists, the majority erred in holding that the program discriminated against religious institutions. “The Montana Supreme Court invalidated the program on state-law grounds, thereby foreclosing the as-applied challenge [the families] raise here,” she argues. The Court should have no occasion to entertain their Free Exercise Clause claim—indeed, she calls Roberts’ opinion “perverse.” She does offer a few words on the merits of the claim too. Sotomayor dissented in Trinity Lutheran, so she takes considerable exception to its application here.
Benchwarmers 