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Supreme Court says states cannot discriminate against religious schools – here’s our analysis

Written by William C. Duncan

June 30, 2020

The Supreme Court issued a consequential religious freedom opinion this morning, Espinoza v. Montana Department of Revenue.

Case background:

It involved an old amendment to the Montana Constitution (a Blaine Amendment) meant to prevent any state support going to religious schools. Initially, this was an attempt to protect the public schools, dominated by Protestant influence, from competition with private Catholic schools.

In 2015, Montana created a $150 tax credit for individuals who donated to a scholarship fund that could be used by parents who wanted to send their children to private schools. In administering the program, the Montana Department of Revenue said that none of the scholarship money could be used by parents who chose to send their children to religious schools. So, mothers of children who wanted to use scholarship money at a private Christian school sued.

The Montana Supreme Court decided to invalidate the entire scholarship program, since in the version approved by the Legislature before the Department of Revenue issued its rule, some of the scholarship money could go to religious schools, which that court felt was inconsistent with the state’s Blaine Amendment.

Supreme Court ruling:

Today, a 5-4 majority of the Supreme Court ruled that the Department of Revenue rule was unconstitutional because it singled out religious schools and religious parents for treatment that is not given to others who might participate in the scholarship program.

The majority opinion held:

Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.

For the court, “[w]hen otherwise eligible recipients are disqualified from a public benefit ‘solely because of their religious character,’ we must apply strict scrutiny.” This means that unless Montana could demonstrate that it had a compelling reason to single out religious parents or religious schools for differential treatment, the law would be held unconstitutional. The state’s only argument – that it needed to separate church and state more “fiercely” than the federal government – was not, the majority concluded, a compelling reason to violate a clear constitutional prohibition on discrimination against faith.

The Montana Supreme Court should have followed the federal Constitution to conclude that the exclusion of religious choices from scholarship recipients was invalid, rather than just doing away with the entire program to avoid allowing religious schools from an indirect benefit.

Justice Clarence Thomas wrote a separate opinion (joined by Justice Neil Gorsuch) to explain that he believes the current interpretations of the Establishment Clause are mistaken, because that clause was intended only to prevent state coercion in favor of religion and only applies to actions of the federal government.

Justice Samuel Alito also wrote a separate opinion, describing in detail the history behind the enactment of Blaine Amendments, and their anti-Catholic purpose.

Justice Gorsuch’s concurring opinion focused on some language in the majority opinion that seemed to imply that there may be a constitutional difference between whether government discriminates on the basis of the status of an individual as religious or on religious conduct. He pointed out that the First Amendment “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.” He concluded the state of Montana had essentially told the parents:

You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public benefit discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.

Four justices dissented:

Justice Ruth Bader Ginsburg argued that any difference in treatment between parents who wanted to use religious schools and those who wanted to use secular schools had been removed when the Montana Supreme Court scrapped the program because religious schools might benefit.

Justice Stephen Breyer’s dissent charged that the majority opinion would lead to “entanglement and conflict” between church and state.

Justice Sonia Sotomayor’s dissent suggested the majority opinion weakens the principle of separation of church and state and argued that the state was free to eliminate a benefit it had provided.

Justice Elena Kagan agreed with Justice Ginsburg’s dissent and a portion of Justice Breyer’s.

What does it mean?

Today’s decision is an important reiteration of the principle that the government cannot treat religious citizens, religious schools and religious organizations unfavorably due to their faith or faith’s practice. Although it does not invalidate Blaine Amendments (like Utah’s) entirely, it limits their application so that people of faith and religious organizations are not singled out. This is an important contribution to the core purpose of religious freedom – allowing people to live out their beliefs without interference or punishment.

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