Until recently, Supreme Court cases about government funding of religious schools were Establishment Clause cases. The Establishment Clause was historically understood to ban direct funding of religion, and the question was whether the challenged scheme violated this prohibition.  After Espinoza v. Montana Department of Revenue, however, it may be unconstitutional discrimination and a Free Exercise Clause violation for a state to fail to fund religious schools. 

Espinoza arises out of Montana’s scholarship program, where every dollar donated to a school scholarship organization would result in a dollar reduction on a citizen’s tax bill. The school scholarship organization would then provide scholarships for students at private schools. However, there was a problem: 12 out of 13 participating private schools were religious schools, and the Montana Constitution bans Montana from funding, either directly or indirectly, any religious schools.

Mindful of the provision, often termed a no-aid provision, the Montana Department of Revenue, the agency charged with implementing the program, barred private religious schools from participating. Parents of children at the Stillwater Christian School sued, arguing that the rule excluding religious schools violated their religious liberty rights. The Montana Supreme Court struck the whole program down, citing its no-aid provision. The end result was that no Montana money was going to any private school, religious or not.

Nevertheless, the U.S. Supreme Court held that the Montana court’s decision violated the Free Exercise Clause. The no-aid provision, upon which the Montana court relied, discriminated against religious schools simply because of their status as religious. Such discrimination triggered strict scrutiny, which Montana could not satisfy. In short, Chief Justice Roberts wrote for the 5-4 majority, “A State need not subsidize private education. But once a States decides to do so, it cannot disqualify some private schools solely because they are religious.”

The Supreme Court cited its own recent decision in Trinity Lutheran Church v. Comer (2017) in support. In that case, Supreme Court held that a state violated the Free Exercise Clause when it created a program to subsidize playgrounds, but then excluded religious school playgrounds solely because of their status as a religious institution. If the state creates a benefit program, they cannot exclude an organization just because it is linked to a church. That is penalizing the church school and unconstitutional discrimination against religion. Espinoza held the same principle applies when the benefit is funding for private schools rather than funding for playgrounds.

However, there are at least two significant differences between Espinoza and Trinity Lutheran. First, in striking the entire program, the Montana Supreme Court did not discriminate against religious schools because both secular and religious private schools were affected. In Trinity Lutheran Church, secular school playgrounds received funding but religious school playgrounds did not. Here, no private school receives any state money. As Justice Ginsburg noted in dissent, “secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioner’s religion.”

Second, according the Supreme Court in Trinity Lutheran, the govt money was used for a secular purpose, improving playgrounds and making them safer for kids. Here, it is not possible to describe religious schools, whose missions usually include religious indoctrination, as secular endeavors. (Indeed, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), which held that schoolteachers at religious schools could be “ministers” for purposes of the ministerial exception, presumes otherwise.). Chief Justice Roberts attempts to finesse this point by arguing religious schools were excluded because of their religious status, not their religious activities. But as Justice Breyer notes in dissent about this specious distinction, parents send children to religious schools precisely for what they do—namely the religious activity of inculcating their children in their chosen faith. “How else could petitioners claim that barring them from using state aid to attend these schools violates their free exercise rights.”

In any event, the idea that any disfavoring of religion automatically violates the Free Exercise Clause cannot stand. For better or worse, religion is special in the United States. Religion gets special advantages – like the ministerial exception from anti-discrimination law -- but it is also subject to special limits. After all, we have an Establishment Clause as well as a Free Exercise Clause.

Yet the Court rejected Montana’s attempt to defend its no-aid provision as promoting longstanding Establishment Clause values. Instead, the Supreme Court responded that Montana’s interest in separation of church and state “cannot qualify as compelling.”  Indeed, it expressed surprise that Montana’s “alternative view” that such a separation would promote religious liberty: “We do not see how the no-aid provision promotes religious freedom.”  But in addition to keeping the civil peace, barring state funding of religion has long been understood to protect both majority and minority religions. The reality is that most taxpayer funding of private religious schools will end up at Christian schools. Thus, to mandate this kind of funding would exacerbate the govt’s favoritism of Christianity, and the harms that flow to minority religions from favoring one religion above all others. Govt funding is also deleterious for religious majorities, who can better preserve the integrity and independence of their schools if they do not depend on government largesse. After all, funding often comes with strings attached.

Espinoza leaves us with a gluttonous Free Exercise Clause, and a starved Establishment Clause. The Supreme Court once held that a government program that funded childbirth but not abortion left women no worse off than they were before the program. Yet the Supreme Court did not find that a government program that funds secular private schools but not religious private schools left religious families & religious schools no worse off than they were before the program. Today, the Supreme Court held that such a program unconstitutionally burdens religious schools and families—even though the actual question before the Court was the constitutionality of a govt program that funded no private schools at all.  Meanwhile, the traditional goals of the Establishment Clause, once a co-equal religion clause, are not even compelling.

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