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Published online by Cambridge University Press: 26 October 2020
The U.S. Supreme Court's decision in Espinoza v. Montana Department of Revenue, holding that religious schools cannot be excluded from a state program of financial aid to private schools, is another incremental step in the Court's long-running project to reform the constitutional law of financial aid to religious institutions. There was nothing surprising about the decision, and it changed little; it was the inevitable next link in a long chain of decisions. To those observers still attached to the most expansive rhetoric of no-aid separationism, it is the world turned upside down. But the Court has been steadily marching away from that rhetoric for thirty-five years now. The more recent decisions, including Espinoza, do a far better job than no-aid separationism of separating the religious choices and commitments of the American people from the coercive power of the government. And that is the separation that is and should be the ultimate concern of the Religion Clauses—to minimize the government's interference with or influence on religion, and to leave each American free to exercise or reject religion in his or her own way, neither encouraged by the government nor discouraged or penalized by the government.
1 Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020).
2 Montana Code Annotated § 15-30-3103, 3111.
3 Id. §§ 15-30-3102, 3103.
4 Id. §§ 15-30-3103, 3111.
5 Espinoza v. Montana Department of Revenue, 435 P.3d 603 (Mont. 2018).
6 Montana Constitution art. X, § 6.
7 The court did this indirectly, or perhaps we should say in steps. It first held the inclusion of religious schools in the statutory program unconstitutional; then it invalidated, as inconsistent with the statute, an administrative rule that had barred religious schools from participation. Espinoza, 435 P.3d at 614–15.
8 Espinoza, 140 S. Ct. at 2256–57.
9 The Court reasoned that a state court “must not give effect to state laws that conflict with federal law[]” and that “[g]iven the conflict between the Free Exercise Clause and the application of the no-aid provision here, the Montana Supreme Court should have ‘disregard[ed]’ the no-aid provision” rather than using it as the legal authority for striking down the program. Id. at 2262 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803)).
10 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); Employment Division v. Smith, 494 U.S. 872 (1990).
11 Montana Constitution art. X, § 6.
12 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (quoting Lukumi, 508 U.S. at 533, 542) (modifications by the Court).
13 Id. (holding that state could not declare an organization ineligible for a grant supporting playground resurfacing on the ground that it was a church).
14 Id. at 2024–25 (quotation omitted).
15 Everson v. Board of Education, 330 U.S. 1, 16 (1947).
16 137 S. Ct. 2012.
17 Trinity Lutheran Church of Columbia, Inc. v. Pauley, 788 F.3d 779 (8th Cir. 2015).
18 Trinity Lutheran, 137 S. Ct. at 2019.
19 Id. at 2024 n.3 (plurality opinion).
20 Moses v. Skandera, 367 P.3d 838 (N.M. 2015), vacated sub nom. New Mexico Association of Non-Public Schools v. Moses, 137 S. Ct. 2325 (2017); Taxpayers for Public Education v. Douglas County School District, 351 P.3d 461 (Colo. 2015), vacated, 137 S. Ct. 2327 (2017). On remand, the New Mexico court reinterpreted the state constitution and eliminated the discrimination, at least in the textbook program before it. Moses v. Ruszkowski, 458 P.3d 406 (N.M. 2018). The Colorado case became moot when a newly elected school board repealed the school-choice program at issue. Nicholas Garcia, Big Blow to Voucher Program: Douglas County School Board Votes to End Controversial Method of Assistance, Denver Post, December 5, 2017 (available on Westlaw). Essentially the same article is available as Nicholas Garcia, The New Douglas County School Board Just Ended a Controversial Voucher Program, Colorado Independent, December 5, 2017, https://www.coloradoindependent.com/2017/12/05/douglas-county-voucher-program-school-baord-colorado/.
The plurality's footnote in Trinity Lutheran also reserved judgment on a second question presented by the New Mexico case: whether a facially neutral ban on aid to any private school, religious or secular, is invalid if the ban was originally motivated by anti-Catholicism.
21 Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2255 (2020).
22 Id. at 2260.
23 Trinity Lutheran, 137 S. Ct. at 2024 n.3 (plurality opinion).
24 Espinoza v. Montana Department of Revenue, 435 P.3d 603, 613 (Mont. 2018).
25 Montana Constitution art. X, § 6.
26 Trinity Lutheran, 137 S. Ct. at 2026 (Gorsuch, J., concurring in part) (emphasis in original).
27 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
28 Employment Division v. Smith, 494 U.S. 872, 877 (1990).
29 See, e.g., Lukumi, 508 U.S. 520; Thomas v. Review Board, 450 U.S. 707 (1981); McDaniel v. Paty, 435 U.S. 618 (1978); Sherbert v. Verner, 374 U.S. 398 (1963).
30 Sherbert, 374 U.S. at 404.
31 Thomas, 450 U.S. at 717–18 (emphases added). When the Court in Smith reduced the scope of the Free Exercise Clause, it reaffirmed Sherbert and Thomas on the ground that, when a state's unemployment-benefits law recognizes certain reasons as “good cause” for declining available work, the state's refusal to accept a religiously based reason is non-neutral toward religious exercise. Smith, 494 U.S. at 884.
32 435 U.S. 618 (1978).
33 See Trinity Lutheran, 137 S. Ct. at 2020–21.
34 McDaniel, 435 U.S. at 627.
35 Id.
36 Id. at 627–29.
37 Id. at 630 (Brennan, J., concurring in the judgment) (brackets added, quotation omitted).
38 Id. at 631 (footnotes omitted).
39 Id. at 632.
40 Id.
41 See Trinity Lutheran, 137 S. Ct. at 2025–26 (Gorsuch, J., concurring in part) (arguing that the distinction is unstable).
42 Laycock, Douglas, Comment: Churches, Playgrounds, Government Dollars—and Schools?, 131 Harvard Law Review 133, 162 (2017)Google Scholar.
43 Montana Code Annotated § 15-30-3102(7)(f); id. § 20-5-109(4).
44 Laycock, supra note 42, at 162.
45 Mitchell v. Helms, 530 U.S. 793, 827–28 (2000) (Thomas, J., for four-justice plurality).
46 McConnell, Michael W., The Selective Funding Problem: Abortions and Religious Schools, 104 Harvard Law Review 989, 1017–18 (1991)CrossRefGoogle ScholarPubMed.
47 Berg, Thomas C., Vouchers and Religious Schools: The New Constitutional Questions, 72 University of Cincinnati Law Review 151, 177 (2003)Google Scholar.
48 McDaniel, 435 U.S. at 632 (Brennan, J., concurring in the judgment).
49 Trinity Lutheran, 137 S. Ct. at 2026 (Gorsuch, J., concurring in part).
50 Espinoza, 140 S. Ct. at 2254.
51 540 U.S. 712 (2004).
52 Espinoza, 140 S. Ct. at 2257–58; Trinity Lutheran, 137 S. Ct. at 2022–24.
53 Davey, 540 U.S. at 725, 722.
54 Id. at 721.
55 Espinoza, 140 S. Ct. at 2257 (quoting Trinity Lutheran, 137 S. Ct. at 2023 (emphasis by the Court in Trinity Lutheran)).
56 Berg, Thomas C. & Laycock, Douglas, The Mistakes in Locke v. Davey and the Future of State Payments for Services Provided by Religious Institutions, 40 University of Tulsa Law Review 227, 248 (2004) (footnote omitted)Google Scholar.
57 Id.
58 Davey, 540 U.S. at 724.
59 Id. at 724–25.
60 Id. at 725.
61 Colorado Christian University v. Weaver, 534 F.3d 1245, 1256 (10th Cir. 2008).
62 See, most famously, Everson v. Board of Education, 330 U.S. 1 (1947).
63 Laycock, supra note 42, at 142–48.
64 Espinoza, 140 S. Ct. at 2258. See also Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, 169 University of Pennsylvania Law Review (forthcoming), part II, ms. at 34–50, https://dx.doi.org/10.2139/ssrn.3593577 (expanding on this evidence).
65 140 S. Ct. at 2259.
66 Id. (quoting Mitchell v. Helms, 530 U.S. 793, 828–29 (2000) (plurality opinion)).
67 Id. (quotation omitted).
68 Id.
69 McDaniel, 435 U.S. at 632 (Brennan, J., concurring in the judgment).
70 515 U.S. 819 (1995).
71 Harvest Family Church v. Federal Emergency Management Agency, 2017 WL 6060107 (S.D. Tex. Dec. 7, 2017), appeal dis'd as moot, 2018 WL 386192 (5th Cir. Jan. 10, 2018).
72 See 15 U.S.C. § 636(a)(36)(D) (making nonprofit organizations eligible for paycheck protection loans) and § 636(a)(36)(A)(vii) (defining “nonprofit organization” to mean an organization described in 26 U.S.C. § 501(c)(3), which includes churches). We are not here addressing or defending an administrative regulation that exempts churches from a statutory provision that precludes loans to local affiliates of large national organizations. Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Federal Register 20817, 20819–20 (Apr. 15, 2020) (interim final rule). The Trump Administration attempted to justify this exemption as necessary to avoid burdening hierarchical churches. It would indeed be troubling if congregational denominations and wholly independent houses of worship got funding and hierarchical denominations did not. And we agree that exemptions from funding conditions are sometimes the most neutral course in the sense that they remove a disincentive to an organization's religious practice (the loss of otherwise available funds) without giving the organization a benefit that others would also want. See infra notes 108–12 and accompanying text. But here it is also troubling that local congregations of national churches got funding and local affiliates of secular charities did not. See Micah Schwartzman, Richard Schragger & Nelson Tebbe, The Separation of Church and State Is Breaking Down under Trump, The Atlantic, June 29, 2020, https://www.theatlantic.com/ideas/archive/2020/06/breakdown-church-and-state/613498/. We have not sufficiently investigated the various structures of the affected organizations to have an informed opinion on whether there was more than one reasonably neutral solution to this conundrum. Perhaps the neutral solution, as the Schwartzman co-authors imply, is to exempt all nonprofits, religious and secular alike. This is how tax exemption works for charitable nonprofits. We believe that preferential funding for churches is unconstitutional. But as this dispute illustrates, the world is a complicated place, and it is not always obvious how a program can best be made neutral and nondiscriminatory.
73 Everson, 330 U.S. at 18.
74 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (quotation omitted); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989) (plurality opinion); Walz v. Tax Commission of City of New York, 397 U.S. 664, 696 (1970) (opinion of Harlan, J.).
75 Berg & Laycock, supra note 56, at 232.
76 Laycock, Douglas, Formal, Substantive, and Disaggregated Neutrality toward Religion, 39 DePaul Law Review 993, 1001–02 (1990)Google Scholar.
77 Posner, Richard A. & McConnell, Michael W., An Economic Approach to Issues of Religious Freedom, 56 University of Chicago Law Review 1, 37–38 (1989)Google Scholar.
78 Laycock, supra note 76, at 999–1000.
79 Posner & McConnell, supra note 77, at 37–38.
80 McConnell, Michael W., Accommodation of Religion: An Update and a Response to the Critics, 60 George Washington Law Review 685, 691 (1992)Google Scholar.
81 Zorach v. Clauson, 343 U.S. 306, 313 (1952).
82 McDaniel v. Paty, 435 U.S. 618, 640 (1978) (Brennan, J., concurring in the judgment) (quoting Zorach, 343 U.S. at 313; footnote omitted).
83 School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring).
84 See Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993); Witters v. Department of Services for the Blind, 474 U.S. 481 (1986); Mueller v. Allen, 463 U.S. 388 (1983).
85 Zelman, 536 U.S. at 649; accord Witters, 474 U.S. at 488; Mueller, 463 U.S. at 399–400.
86 Zelman, 536 U.S. at 652, 654; accord Witters, 474 U.S. at 487–88.
87 Laycock, Douglas, Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 Harvard Law Review 155, 157 (2004)CrossRefGoogle Scholar.
88 Zelman, 536 U.S. at 653 (quoting Witters, 474 U.S. at 487–88) (alteration by the Court); accord Zobrest, 509 U.S. at 10.
89 Zelman, 536 U.S. at 654; accord Witters, 474 U.S. at 487–88.
90 Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation, 139 S. Ct. 909, 910–11 (2019) (statement of Kavanaugh, J., respecting denial of certiorari).
91 Id. at 911.
92 See Laycock, supra note 42, at 154–57; Laycock, supra note 87, at 195–200.
93 Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2261 (2020).
94 Washington v. Davis, 426 U.S. 229 (1976) (equal protection). In Employment Division v. Smith, 494 U.S. 872, 886 n.3 (1990), the Court argued that free exercise claims for religious exemptions are also disparate impact claims and rejected them on that ground. That argument ignored the fact that a generally applicable law that prohibits a person's exercise of religion directly violates the express terms of the Free Exercise Clause. The Court's error followed from its reframing of the Clause as merely an equality provision.
95 Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
96 Espinoza, 140 S. Ct. at 2251.
97 Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 144 (1987).
98 Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987).
99 Thomas v. Review Board, 450 U.S. 707, 727 (1981) (Rehnquist, J., dissenting on other grounds).
100 Sherbert v. Verner, 374 U.S. 398, 409 (1963); see also Wisconsin v. Yoder, 406 U.S. 205, 220 (1972) (“A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.”).
101 Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 188 (2012).
102 Id. at 196.
103 Id. See also Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020) (again applying the exception to employees who teach a religion course to children).
104 494 U.S. 872 (1990).
105 Id. at 890.
106 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (2012); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (2012); Laycock, Douglas, Religious Liberty and the Culture Wars, 2014 University of Illinois Law Review 839, 844–45Google Scholar & nn.22–23, n.26 (collecting state statutes and cases).
107 See Petition for Certiorari, Fulton v. City of Philadelphia, No. 19-123, at i (docketed July 25, 2019). This petition has been granted. Fulton v. City of Philadelphia, 140 S. Ct. 1104 (2020). See also Kennedy v. Bremerton School District, 139 S. Ct. 634, 637 (2019) (statement of Alito, J., for four justices, respecting denial of certiorari) (noting that Smith cut back on free exercise claims but that the Court “ha[d] not been asked to revisit” Smith in that case).
108 Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2260–61 (2020).
109 Fulton v. City of Philadelphia, 922 F.3d 140 (3d Cir. 2019), cert. granted, 140 S. Ct. 1104 (2020).
110 374 U.S. 398 (1963).
111 Id. at 404.
112 Espinoza, 140 S. Ct. at 2255 (quoting Trinity Lutheran, 137 S. Ct. at 2021).
113 Lee v. Weisman, 505 U.S. 577, 587 (1992) (rule against coercion is “beyond dispute”).
114 Cf. id. with Town of Greece v. Galloway, 572 U.S. 565, 586–91 (2014).
115 American Legion v. American Humanist Association, 139 S. Ct. 2067, 2082–83 (2019).
116 Id. at 2085 (“retaining established” religious displays “is quite different from erecting or adopting new ones”).
117 Id. at 2084–85 (emphasis added).
118 Id. at 2089.