Bench Memos

Law & the Courts

Concurring Opinions in Espinoza v. Montana Department of Revenue

In addition to joining the Chief Justice’s majority opinion (summarized here) in Espinoza v. Montana Department of Revenue, Justices Thomas, Alito, and Gorsuch each wrote concurring opinions. Here is a summary of their opinions.

Justice Thomas:

While this case involves the Free Exercise Clause, not the Establishment Clause, the Court’s mistaken interpretation of the Establishment Clause continues to hamper Free Exercise rights.

Under the modern view of the Establishment Clause, the government must treat all religions equally and treat religion equally to nonreligion. This view is unmoored from the original meaning of the Establishment Clause. Under its original meaning, the Establishment Clause protects states and their citizens from the imposition of an established religion by the federal government. Even if it were later incorporated by the Fourteenth Amendment against the states, it would protect only against an “establishment” of religion as understood at the founding: coercion of religious orthodoxy and of financial support by force of law and threat of penalty.

The Court’s overly expansive understanding of the Establishment Clause has led to a cramped interpretation of the Free Exercise Clause. Under this Court’s current approach, state and local governments may rely on the Establishment Clause to justify policies that others wish to challenge as violations of the Free Exercise Clause.

Justice Alito:

Regardless of the motivation for the no-aid provision, its application here violates the Free Exercise Clause. Nevertheless, the provision’s origin is relevant under the decision we issued earlier this year in Ramos v. Louisiana, holding that Louisiana and Oregon laws allowing non-unanimous jury verdicts in criminal trials violated the Sixth Amendment. The majority in Ramos emphasized that the states originally adopted those laws for racially discriminatory reasons. I argued in dissent that this original motivation, though deplorable, had no bearing on the laws’ constitutionality because such laws can be adopted for non-discriminatory reasons, and both States readopted their rules under different circumstances in later years. But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here.

Montana’s no-aid provision was modeled on the failed Blaine Amendment to the Constitution, which was prompted by virulent prejudice against Catholic immigrants. (Pp. 2-7.) Montana’s claim that the provision merely reflects a state interest in preserving public schools ignores that the public-school (or common-school) movement at the time was itself anti-Catholic. (Pp. 7-10.)

It is also not clear that the anti-Catholic animus was scrubbed from the no-aid provision when it was re-adopted at Montana’s constitutional convention in 1972. (Pp. 10-12.)

Justice Gorsuch:

Any jurisprudence grounded on a status-use distinction seems destined to yield more questions than it answers. [Majority opinion leaves open whether this is a meaningful distinction.] This distinction shouldn’t matter under the Free Exercise Clause. 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. Our cases have long recognized the importance of protecting religious actions, not just religious status.

The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways?

[Gorsuch doesn’t cite Employment Division v. Smith (1990), the controversial opinion holding that laws that substantially burden religious exercise don’t violate the Free Exercise Clause if they are neutral and generally applicable, and his opinion is best read, I think, as signaling his willingness to overturn that ruling.]

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