Bench Memos

Law & the Courts

Important Free Exercise Victory in Espinoza v. Montana Department of Revenue

In its ruling today in Espinoza v. Montana Department of Revenue, the Supreme Court ruled by a 5-4 vote that the Montana supreme court violated the Free Exercise Clause when it applied a state constitutional no-aid provision to bar religious schools from receiving scholarship money under a state tax-credit program. Chief Justice Roberts, joined by the four (usually) conservative justices, wrote the majority opinion. Justices Thomas, Alito, and Gorsuch each wrote concurring opinions. Justice Ginsburg, joined by Justice Kagan, wrote a dissent, as did Justice Breyer (joined in part by Kagan) and Justice Sotomayor.

In this post, I will outline the reasoning of the Chief Justice’s majority opinion. Here is his framing paragraph:

The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision.

Here (in the Chief’s voice, so to speak, and with extensive direct borrowing) is the heart of the majority’s analysis:

Our 2017 decision in Trinity Lutheran v. Comer distilled our Free Exercise precedents into the unremarkable conclusion that disqualifying otherwise eligible recipients from a public benefit solely because of their religious character imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny. Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools, and it 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.

Montana argues that Trinity Lutheran does not govern here because the no-aid provision applies not because of the religious character of the recipients, but because of how the funds would be used—for religious education. But whether or not that is a meaningful distinction, this case also turns expressly on religious status and not religious use. The Montana supreme court applied the no-aid provision solely by reference to religious status. That the no-aid provision might have the goal or effect of ensuring that government aid does not end up being used for religious purposes is immaterial. Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses. (Pp. 8-12.)

Locke v. Davey (2004) differs from this case in two critical ways. First, the state of Washington had merely chosen not to fund a distinct category of instruction: the essentially religious endeavor of training a minister to lead a congregation. Second, Locke invoked a historic and substantial state interest in not funding the training of clergy. (Pp. 12-16.)

Montana can’t satisfy the strict-scrutiny test. (Pp. 18-20.)

Montana argues that the Montana supreme court’s elimination of the scholarship program altogether means that there was no Free Exercise violation. According to Montana, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally available benefit. But it’s the Montana legislature that created the scholarship program. The Montana supreme court invalidated it pursuant to a state-law provision that expressly discriminates on the basis of religious status. When the Montana supreme court was called upon to apply the no-aid provision to exclude religious schools from the program, it was obligated by the federal Constitution to reject the invitation. Had it done so, it would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, it would have had no basis for terminating the program. Because the elimination of the program flowed directly from the Montana supreme court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision, or as resting on adequate and independent state law grounds. (Pp. 20-22.)


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