Trinity Lutheran and Espinoza

 I want to begin our coverage of Trinity Lutheran/Espinoza and religious neutrality in the Welfare State with a quotation from Prof. Michael McConnell, perhaps the leading scholar of his generation on the subject of Religious Liberty:

"The modern welfare-regulatory state wields three forms of power that potentially threaten religious pluralism: the power to regulate religious institutions and conduct, the power to discriminate in distributing state resources, and control over institutions of culture and education. Each of these powers can, and frequently does, promote homogeneity of all kinds, and especially with regard to religion."

So let me pose this question for you as we begin to explore the Court’s decisions in Trinity Lutheran and Espinoza:

If the goal of the enterprise of the First Amendment is to treat religion and nonreligion neutrally (neither advance nor inhibit the one or the other, neither endorse a message of approval or disapproval of the one or the other), how should the benefits of government be distributed to private individuals and institutions here in the Welfare State?

Is the baseline of benefits only for the non-religious neutral between religion and nonreligion?

What would authentic neutrality look like?

Now consider this comment by Professors Laycock and Berg:

The Supreme Court's decision in Espinoza v. Montana Department of Revenue, holding that religious schools cannot be excluded from a state program of financial aid to private schools, is another incremental step in the Court's long-running project to reform the constitutional law of financial aid to religious institutions. There was nothing surprising about the decision, and it changed little; it was the inevitable next link in a long chain of decisions. To those observers still attached to the most expansive rhetoric of no-aid separationism, it is the world turned upside down. But the Court has been steadily marching away from that rhetoric for thirty-five years now.

The more recent decisions, including Espinoza, do a far better job than no-aid separationism of separating the religious choices and commitments of the American people from the coercive power of the government. And that is the separation that is and should be the ultimate concern of the Religion Clauses—to minimize the government's interference with or influence on religion, and to leave each American free to exercise or reject religion in his or her own way, neither encouraged by the government nor discouraged or penalized by the government.

 What are your thoughts?