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)
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.
1. "The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the 'most rigorous' scrutiny."
2. "The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand."
3. But—there is always a “but” when Chief Justice Roberts writes the Court’s opinion—there is a footnote—footnote 3—in which the Court says (edited from linked opinion):
“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”
So this case deals with these particular facts and no others—it is like a ticket for this train only and this day only. Footnote 3 may be the price Roberts paid to get the 7 to 2 majority.
4. It is also significant to note that Justices Thomas & Gorsuch explicitly refused to join footnote 3. Gorsuch explained that the general thrust of the opinion is inconsistent with any attempt to limit the case to its specific facts because the Court’s decisions should be “governed by general principles, rather than ad hoc improvisations” and “the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.”
Do you agree with Gorsuch?
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!
From Oyez:
Trinity Lutheran Church of Columbia, Inc. (Trinity) operates a licensed preschool and daycare called The Learning Center that was initially opened as a non-profit corporation but merged with Trinity in 1985. The Learning Center has an open admissions policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because Article I, Section 7 of the Missouri Constitution states, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity sued and argued that the denial of its application violated the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment’s protections of freedom of religion and speech. The district court granted Missouri DNR Director Pauley’s motion to dismiss for failure to state a claim, and Trinity moved for reconsideration and to amend its complaint to include allegations that such grants had previously been given to religious organizations. The district court denied the motions, and the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal and the denial of the motions to reconsider and amend the complaint.
Does the exclusion of churches from an otherwise neutral and secular aid program violate the First Amendment’s guarantee of free exercise of religion and the Fourteenth Amendment's Equal Protection Clause?
