Three years ago, in Trinity Lutheran Church v. Comer, the Roberts Court took a significant step toward dismantling the constitutional project of limits on public financial support for religious institutions. That enterprise once included an Establishment Clause prohibition on direct aid to houses of worship, and a secondary commitment to allowing the states to maintain their own, broader norms of church-state separation in matters of funding.  Trinity Lutheran invoked the Free Exercise Clause to invalidate a state constitutional restriction on grants to houses of worship.  The grant in question involved the resurfacing of a playground, and the Court ruled (7-2) that states could not use the religious status of a grantee as the basis for denying the grant.  In what seemed to be an important footnote, the Court noted that the “. . . 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.”  Only Justice Sotomayor, joined by Justice Ginsburg, even noted the long history of Establishment Clause restrictions on aid to houses of worship, and the elaborate and widespread history of state constitutional restrictions on the use of government funds to support religious entities.

It did not take long for Trinity Lutheran to grow into a monster. In a 5-4 decision (Roberts, CJ, joined by Alito, Gorsuch, Thomas, and Kavanaugh) in Espinoza v. Montana Department of Revenue, the Supreme Court effectively crushed constitutional restrictions on aid to religious schools. Although the Court explicitly wrote that states are not obliged to fund private schools, states are now forbidden by the Free Exercise Clause to treat religiously affiliated private schools differently from secular private schools.  The many state constitutional provisions, most dating from the 19^th century, that forbid state aid to religiously affiliated entities can no longer be invoked as obstacles to public aid to private religious schools. 

The Montana program at issue in Espinoza involved the use of tax credits allowed to those who donated money to organizations that used the funds to finance scholarships at private elementary and secondary schools.  The Montana Department of Revenue ruled that the state constitution, which barred aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, §6(1), precluded use of these scholarships at religiously affiliated schools. The Department left the program intact with respect to secular private schools.

Several Montana parents, whose children would have benefitted from the scholarships, brought suit in the Montana state courts.  The Montana Supreme Court ultimately ruled that the Department of Revenue was correct in its application of the state constitution. The court went beyond that, however, and held the entire scholarship program void, because state law did not allow the program to be cut down and applied to secular private schools only. Thus, as the case arrived at the U.S. Supreme Court, the state was not favoring secular private school students over those in religious private schools. The program had been eliminated entirely.

This apparent end to the discrimination in favor of secular schools did not save the constitutionality of the Montana no-aid provision (and, in effect, the comparable provisions in over 30 state constitutions).  Chief Justice Roberts’ opinion argued that the state constitution’s no aid clause formed the basis for the state court’s elimination of the program, and that the no aid clause itself violated the Free Exercise Clause of the First Amendment because the no aid clause discriminated on the basis of the religious status of the recipient institution.  The Court rejected the idea that states should be free to carry forward their longstanding constitutional traditions of not funding religious schools.  In doing so, it significantly narrowed its holding in Locke v. Davey that a state could constitutionally exclude, from a state scholarship program, students pursuing a degree in ministry.  Chief Justice Roberts also rejected the argument that the widespread enactment in the 19^th century of no-aid clauses in state constitutions should influence the contemporary meaning of the Free Exercise Clause.  This pattern, argued Roberts, was heavily influenced by anti-Catholic views, and therefore should be discounted.

Espinoza produced three concurrences and three dissents. Justice Thomas, joined by Justice Gorsuch, urged that the Establishment Clause applies only to the federal government, and in any event permits the states to acknowledge, accommodate, and even prefer religion to its secular counterparts.  Justice Alito wrote to emphasize in detail what he saw as the anti-Catholic provenance of state constitutional restrictions on aid to religious entities.^[i] Justice Gorsuch challenged the status-use distinction on which the Court’s opinion principally relies to invalidate the state constitutional provision.  Religious entities engage in religious uses, Gorsuch argued, continuing a theme he began in Trinity Lutheran.  In his view, discrimination on the basis of religious status or use presumptively violates the Free Exercise Clause. 

Justices Ginsburg, Breyer, and Sotomayor authored dissents. Justice Ginsburg, joined by Justice Kagan, argued that the Montana Supreme Court’s decision to void the entire scholarship program eliminated any possible Free Exercise violation. Justice Breyer, joined in part by Justice Kagan, argued that states are free to forbid public subsidy of religious instruction, and that religious affiliation of the school is a constitutionally wise proxy for the fact of religious instruction. Once that proxy is removed (as Espinoza does), the state would have to investigate the particulars of religious content in the curriculum, and that itself presents a danger to the religion-state relationship.  Justice Sotomayor similarly argued that the result in Montana was not discriminatory, and hence could not violate the Free Exercise Clause, and that Espinoza “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.” Sotomayor dissent, slip op. at 2.

We will leave for another day the thick details of the dispute among the Justices with respect to the history of taxpayer support of religious institutions, and its constitutional status.  Suffice it to say for now that the Madisonian account championed by many on the Court, including Justice Rutledge in Everson, Justice Souter in Mitchell v. Helms, and most recently by Justice Sotomayor in Trinity Lutheran has now been abandoned by a majority of the Justices. Perhaps that account remains alive with respect to government financial support of worship space and clergy, but Espinoza eliminates it with respect to education in state-accredited religious schools.

Going forward, the crucial distinction identified in both Trinity Lutheran and Espinoza is between religious status of a grantee, and religious use of public funds.  The Free Exercise Clause now presumptively prohibits any state preference for private secular entities over religious ones.  Only a compelling interest can overcome that presumption, and the Court has now twice ruled that a state’s preference for a constitutional policy of church-state separation, broader than the Establishment Clause requires, does not present such an interest.  But Justice Gorsuch has now twice insisted that the status-use distinction is constitutionally wrong, and Chief Justice Roberts in Espinoza wrote that nothing in his opinion “is meant to suggest that we agree with [Montana] . . . that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.” Roberts, slip op. at 12.

Consider the implications of a Court ruling that government – federal, state, and local – may not discriminate against religious uses of taxpayer support.  One obvious and concerning example is that of charter schools, raised by Justice Breyer briefly in dissent.  Breyer dissent, slip op. at 19.  Charter schools present many different characters.  Some might emphasize the history of African, Latino, or Asian cultures; others might offer immersion in science, mathematics, or foreign languages.  Charters are paid for entirely with government funds.  Accordingly, charters always impose certain conditions on the schools, such as non-discrimination in hiring or admissions. Such secular conditions do not discriminate against religiously affiliated schools, and do not violate the Free Exercise Clause.

Consider, though, a proposal to create an Orthodox Jewish or Evangelical Protestant charter school.  Before today, the school district would likely have said that a charter school may not have a religious character.  After Espinoza, however, the school district’s answer may well be seen as discrimination based on religious status – the sponsoring organization’s character as a religious community.  The school district would then be forbidden from denying the charter on the grounds of the school’s religious identity.  Moreover, and fortunately, the district could not discriminate in favor of some faiths and against others.

But what if the district’s conditions include a requirement that all charter schools refrain from offering religious instruction, or promoting daily prayer?  In the new Religion Clause vernacular, this is discrimination against religious use. Once upon a time, the Supreme Court took the view that the Establishment Clause forbade publicly funded schools from engaging in such activities, because the state was barred from authoring them.  See Engel v. Vitale.  Over time, however, the grounds for the ban on school-sponsored prayer and religious instruction have shifted away from a focus on authorship, and toward a concern about coercion of religious experience. See Lee v. Weisman.  Accordingly, the state may condition a charter on no compulsory prayer or instruction, but it has become much harder to see why a charter can be conditioned on a requirement of no prayer or religious instruction at all.

No doubt, states may condition charters on non-discrimination in hiring and admissions, and on a curricular requirement of teaching equal respect for all races, LGBT persons, and others.  But once a state opens up to charter schools of a wide variety, one might expect intriguing variations like a Black Lives Matter school, a Buddhist school, a French immersion school, and (among other faiths) a Muslim, Jewish, or evangelical Protestant school.  So long as no one is forced to attend any of those charter schools, and all students have the choice of a secular public school, the Establishment Clause arguments against such arrangements may no longer work. If that is correct, the Free Exercise Clause arguments against a restriction on voluntary religious activity in a charter school, fully funded by the government, now look very strong indeed.

CONCLUSION

In expanding the relevant Free Exercise principles from the narrow context of playgrounds to the far broader one of schools, the Supreme Court has eliminated the constitutional obstacles to public support of education in private religious schools.  Programs that aid private secular and religious schools alike can no longer be challenged on federal or state constitutional grounds simply because religious education will benefit.  Moreover, the slender reed on which the status-use distinction rests suggests far more troubling possibilities of state subsidy for religious indoctrination. With the historical underpinnings of separationist theory having been repudiated by a Court majority in Espinoza and Trinity Lutheran, those who still believe that the Constitution precludes state involvement in promoting religious thought and experience have some work cut out for them.

[i] Justice Alito’s very recent arguments against relying on constitutionally dubious origins of state law, see Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (Alito, J. dissenting) did not discourage him from making the same move in Espinoza.  Espinoza, Alito, J. concurring, slip op. at 1-2 (“But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here.”)

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