Espinoza: Religious Status or Religious Use/Conduct

 Here are some excerpts from Espinoza:

1. "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. [citing Trinity Lutheran] Such status-based discrimination is subject to “the strictest scrutiny.”
None of this is meant to suggest that we agree...that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. See Lukumi, 508 U. S., at 546 (striking down law designed to ban religious practice involving alleged animal cruelty, explaining that a law “target[ing] religious conduct for distinctive treatment or advanc[ing] legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases”). Some Members of the Court, moreover, have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status." p. 1889

2. Gorsuch concurring:

 "Not only is the record replete with discussion of activities, uses, and conduct, any jurisprudence grounded on a status-use distinction seems destined to yield more questions than answers. Does Montana seek to prevent religious parents and schools from participating in a public benefits program(status)? Or does the State aim to bar public benefits from being employed to support religious education (use)?Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion.Nor are the line-drawing challenges here unique; they have arisen before and will again. See Trinity Lutheran, 582 U. S., at ___–___ (slip op., at 1–2) (opinion of GORSUCH, J.). Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. 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." p. 1895

 

Exercise means exercise! Gorsuch is  a man after my own heart!