-- Trinity Lutheran (Link); Espinoza Casebook p. 1886-1900 (notice Justice Thomas's concurring opinion in particular); Carson v. Makin (link); My Article on School Choice and 1A: (link)
--City of Boerne case (casebook p. 1214-1223); Casebook p. 1900-1907; Groff v. DeJoy (link)(follow link to opinion)
The issue the Court deemed relevant was the history and tradition of government support to private schools, including private religious schools. Consider this discussion in Espinoza on p. 1890:
But no comparable “historic and substantial” tradition supports Montana’s decision to disqualify religious schools from government aid. In the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones. . . . Local governments provided grants to private schools, including religious ones, for the education of the poor. . . . Even States with bans on government-supported clergy, such as New Jersey, Pennsylvania, and Georgia, provided various forms of aid to religious schools. . . . Early federal aid (often land grants) went to religious schools. . . . Congress provided support to denominational schools in the District of Columbia until 1848, . . . and Congress paid churches to run schools for American Indians through the end of the 19th century . . . . After the Civil War, Congress spent large sums on education for emancipated freedmen, often by supporting denominational schools in the South through the Freedmen’s Bureau. . . .
This helps us focus on what the Court deemed to be the relevant historical question.
Consider this passage from Justice Breyer's dissent in Espinoza:
And what are the limits of the Court’s holding? The majority asserts that States “need not subsidize private education.” Ante, at 20. 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.I don't think there is any risk that the Court will strike down funding only for secular public schools as violating the Free Exercise Clause.
But does Breyer have a point? Does the public school monopoly over k-12 funding "exert 'coercive' pressure on parents whose faith impels them to enroll their children in religious schools" rather than strictly secular public schools?
In order for a POF (a person of faith) with 5 children to receive an appropriate education for her children, she must forgo the single largest benefit most citizens receive from government, a k-12 scholarship for her children to receive a secular education in government schools. Over 13 years of k-12 education for 5 children, she might be denied nearly $1 million dollars in benefits paid for by her family's tax payments. This is incredible coercive pressure to set aside her religious choice and send her children to secular government schools.
Should the Free Speech and Free Exercise Clauses require school choice for all children?
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:
What are your thoughts?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.
p. 1895:
"[M]any parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. [Do you agree?]Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. The tax-credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice. . ."
Do you agree with Justice Alito? If he is correct about the antithetical effect of the worldview of secular education, doesn't the First Amendment require universal school choice for every child?
Here is the bottom line (p. 1893):
Given the conflict between the Free Exercise Clause and the application of the no-aid provision here, the Montana Supreme Court should have “disregard[ed]” the no-aid provision and decided this case “conformably to the [C]onstitution” of the United States. Marbury v. Madison, 1 Cranch 137, 178 (1803). That “supreme law of the land” condemns discrimination against religious schools and the families whose children attend them. Id., at 180. They are “member[s] of the community too,” and their exclusion from the scholarship program here is “odious to our Constitution” and “cannot stand.”
Consider this excerpt from my article on school choice:
Although dicta in Carson makes clear that a state “may provide a strictly secular education in its public schools” and no state is required to fund private education, the facts of this case and the Court’s expansive free exercise reasoning hint at the argument that the Free Exercise Clause can be read as requiring states to fund school choice for all K-12 students. Indeed, in his dissent, Justice Breyer predicted that the arc of Carson may indeed require states to fund school choice for all families:
"We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education. What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?"
Although I don’t share Justice Breyer’s fear of religious equality for all K-12 students, I agree with his reading of the spirit of free exercise emanating from Trinity Lutheran, Espinoza, and Carson. That magnificent spirit of equality makes clear that religious families are entitled to their fair share of the benefits of the Welfare State and should not be forced to choose between their faith and the single largest benefit most families receive from state and local government. Most certainly, such discrimination is odious to the First Amendment and should not be allowed to stand.
In other words, if a state pays for a secular public education for students who attend public schools, the spirit of free exercise and equality of social benefits arguably requires the states to fund school choice.
Thoughts?
From Oyez:
Petitioners Kendra Espinoza and others are low-income mothers who applied for scholarships to keep their children enrolled in Stillwater Christian School, in Kalispell, Montana. The Montana legislature enacted a tax-credit scholarship program in 2015 to provide a modest tax credit to individuals and businesses who donate to private, nonprofit scholarship organizations. Shortly after the program was enacted, the Montana Department of Revenue promulgated an administrative rule (“Rule 1”) prohibiting scholarship recipients from using their scholarships at religious schools, citing a provision of the state constitution that prohibits “direct or indirect” public funding of religiously affiliated educational programs.
Espinoza and the other mothers filed a lawsuit in state court challenging Rule 1. The court determined that the scholarship program was constitutional without Rule 1 and granted the plaintiffs’ motion for summary judgment. On appeal, the Department of Revenue argued that the program is unconstitutional without Rule 1. The Montana Supreme Court agreed with the Department and reversed the lower court.
Does a state law that allows for funding for education generally while prohibiting funding for religious schools violate the Religion Clauses or the Equal Protection Clause of the federal Constitution?
The application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause. Chief Justice John Roberts authored the opinion on behalf of the 5-4 majority.
The Court first noted that the Free Exercise Clause “protects
religious observers against unequal treatment” and against “laws that
impose special disabilities on the basis of religious status.” In this
case, Montana’s no-aid provision excluded religious schools from public
benefits solely because of religious status. As such, the law must be
subject to strict scrutiny review; that is, the government must show
that its action advances “‘interests of the highest order” and that the
action is “narrowly tailored in pursuit of those interests.” Montana’s
interest in this case—which the Court described as creating greater
separation of church and state than the federal Constitution
requires—does not satisfy strict scrutiny given its infringement of free
exercise. Because the Free Exercise Clause barred the application of
Montana’s no-aid provision, the Montana Supreme Court lacked the
authority to invalidate the program on the basis of that provision.
Take a look at this passage from casebook at p. 1893:
The Department argues that . . . there is no free exercise violation here because the Montana Supreme Court ultimately eliminated the scholarship program altogether. According[ly,] . . . religious schools and adherents cannot complain that they are excluded from any generally available benefit.
Two dissenters agree. Justice Ginsburg reports that the State of Montana simply chose to “put all private school parents in the same boat” by invalidating the scholarship program, and Justice Sotomayor describes the decision below as resting on state law grounds having nothing to do with the federal Free Exercise Clause.
The descriptions are not accurate. The Montana Legislature created the scholarship program; the Legislature never chose to end it . . . . The program was eliminated by . . . the Montana Supreme Court[, which] invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program. . . .
The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. But the Court’s error of federal law occurred at the beginning. When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. . . . Because the elimination of the program flowed directly from the Montana Supreme Court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision….
Do you understand the argument made by Montana and the dissenters? And how Chief Justice Roberts was able to reject it?
But first, an excerpt from a recent law review article of mine on school choice and the First Amendment:
Maine is the most rural state in America. Many of Maine’s rural areas are too small to operate a public high school. Thus, Maine law provides that in such rural areas, local government shall pay the tuition at “the approved private school of the parent’s choice.” Parents may choose any private school, whether “inside or outside the State.” However, there is a catch: tuition assistance payments may only be directed to “nonsectarian” schools. Alan and Judy Gillis of rural Orrington, Maine, explained how it feels to be excluded from educational benefits because you choose to educate your children in a private religious school: “We feel discriminated against because of our religious convictions[.] . . . If our neighbors have the freedom to choose a private school and receive tuition from our town, why are we denied this same benefit just because we desire a religious education for our daughter?”
Why indeed?
1. "Maine has
enacted a program of tuition assistance for
parents who live in school districts that do not
operate a secondary school of their own. Under
the program, parents designate the secondary
school they would like their child to
attend—public or private—and the school district
transmits payments to that school to help defray
the costs of tuition. Most private schools are
eligible to receive the payments, so long as
they are “nonsectarian.” The question presented
is whether this restriction violates the Free
Exercise Clause of the First Amendment." (p.1)
2. The Court says Trinity Lutheran and Espinoza control: "But as we
explained in both Trinity Lutheran and
Espinoza, such an “interest in
separating church and state ‘more fiercely’ than
the Federal Constitution . . . ‘cannot
qualify as compelling’ in the face of the
infringement of free exercise.” Justice Breyer
stresses the importance of “government
neutrality” when it comes to religious
matters, but there is nothing neutral
about Maine’s program. The State pays tuition
for certain students at private schools—so long
as the schools are not religious. That is
discrimination against religion. A State’s
anti-establishment interest does not justify
enactments that exclude some members of
the community from an otherwise generally
available public benefit because of their
religious exercise." (p. 4, just before III)
3. And notice that the status/use distinction is no more:
Our opinions in Trinity Lutheran and Espinoza, however, have already explained why Locke can be of no help to Maine here. Both precedents emphasized, as did Locke itself, that the funding in Locke was intended to be used “to prepare for the ministry.” Funds could be and were used for theology courses; only pursuing a “vocational religious” degree was excluded.Locke’s reasoning expressly turned on what it identified as the “historic and substantial state interest” against using “taxpayer funds to support church leaders.” But as we explained at length in Espinoza, “it is clear that there is no ‘historic and substantial’ tradition against aiding [private religious] schools comparable to the tradition against state-supported clergy invoked by Locke.” Locke cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.
Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. (p.4-5)
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!
