Caseflicks

Supreme Court of the United States • 2020

Espinoza v. Montana Dept. of Revenue

591 U.S. 464 | 140 S. Ct. 2246 | 207 L. Ed. 2d 679

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Takeaway

In short, this case holds that once a State offers private-school aid, it generally may not exclude religious schools or families solely because the schools are religious.

Background

Montana created a tax-credit scholarship program to help families pay private-school tuition. Taxpayers could receive a credit of up to $150 for donations to scholarship organizations, which then awarded scholarships to eligible students. The statutory definition of eligible schools generally covered private schools meeting accreditation, testing, and safety requirements.

Montana’s Department of Revenue adopted Rule 1, excluding schools “owned or controlled” by a church or religious denomination. The Department said the rule was necessary to comply with Montana’s constitutional no-aid provision, which prohibits public aid to sectarian schools. Three mothers who wanted to use scholarships at Stillwater Christian School sued, alleging religious discrimination. The trial court enjoined Rule 1, reasoning that the state constitutional provision did not reach tax credits.

The Montana Supreme Court agreed that Rule 1 exceeded the Department’s authority because the statute included religious schools. But it held that the unmodified scholarship program itself violated the state constitution’s no-aid provision because scholarship funds could reach religious schools. Rather than sever or preserve the program for secular schools, it invalidated the entire program. The parents sought Supreme Court review under the Free Exercise Clause.

Issues

Issue #1

Whether Montana’s application of its no-aid provision to exclude religious schools and their families from an otherwise available scholarship program violated the Free Exercise Clause.

Holding

Yes. The exclusion was religious-status discrimination subject to strict scrutiny, and it violated the Free Exercise Clause.

Reasoning

The Free Exercise Clause protects religious observers from unequal treatment and from laws imposing special disabilities because of religious status. Under Trinity Lutheran, excluding an otherwise eligible entity from a public benefit solely because it is religious triggers the most exacting scrutiny.

Montana’s no-aid provision barred support for schools because they were controlled by a church, sect, or denomination. The Montana Supreme Court applied that provision by focusing on whether schools were sectarian, religiously affiliated, or church controlled. That was discrimination based on the schools’ religious character, and it also denied benefits to parents solely because they selected religious schools.

The Court rejected Montana’s effort to characterize the restriction as one based only on religious use of funds. Whatever the provision’s purposes or effects, the state court’s actual basis for exclusion was the religious status of the school. The Court did not decide whether a use-based restriction would receive less than strict scrutiny; status discrimination alone resolved this case.

Issue #2

Whether Locke v. Davey permitted Montana to withhold scholarship benefits from religious schools.

Holding

No. Locke involved a narrow refusal to fund clergy training, not a categorical exclusion of religious schools because they are religious.

Reasoning

In Locke, Washington denied a scholarship to a student pursuing a devotional theology degree that would prepare him for ministry. Washington otherwise allowed scholarship recipients to attend pervasively religious schools. The denial therefore turned on the particular essentially religious course of instruction—training clergy—not on the school’s religious identity.

Montana’s provision swept far more broadly. It did not isolate ministerial training or any particular religious curriculum; it barred aid to every qualifying religious school because of what the school was. It forced schools to choose between religious affiliation and public benefits, and it likewise forced families to choose between a religious education and the scholarship program.

Locke also rested on a historically substantial tradition against publicly funding clergy. The Court found no comparable founding-era tradition against aid to religious schools. Although nineteenth-century no-aid provisions became widespread, many were connected to the Blaine movement’s anti-Catholic hostility and could not establish a tradition comparable to the one recognized in Locke.

Issue #3

Whether Montana had a compelling, narrowly tailored interest sufficient to justify the exclusion of religious schools.

Holding

No. Montana’s asserted interests did not satisfy strict scrutiny.

Reasoning

A State’s desire to separate church and state more completely than the Federal Establishment Clause requires is not a compelling interest when it burdens free exercise. Neutral public-benefit programs may include religious participants, particularly where private choices direct aid to religious schools, without violating the Establishment Clause.

Montana argued that exclusion protected taxpayers and religious schools from government involvement. The Court replied that a State cannot justify an infringement of First Amendment rights by asserting its own competing conception of religious liberty. Religious schools may choose not to participate, but their freedom is not advanced by eliminating their opportunity to participate altogether.

Montana also invoked protection of public education. That rationale was fatally underinclusive: if diverting support to private education were the problem, secular as well as religious private schools would undermine that interest. A State may decline to fund private education entirely, but once it funds private education, it may not make only religious schools bear the cost of protecting public schools.

Issue #4

Whether the Montana Supreme Court avoided a Free Exercise violation by invalidating the entire scholarship program for religious and secular schools alike.

Holding

No. The program’s wholesale invalidation flowed from the state court’s unconstitutional application of the no-aid provision and could not be defended as a neutral state-law outcome.

Reasoning

The Montana Legislature created the scholarship program and did not choose to end it. The Montana Supreme Court first applied the no-aid provision to conclude that religious schools could not participate, then invalidated the entire program because it saw no way to prevent aid from reaching those schools.

The constitutional error occurred at that first step. Because the Free Exercise Clause barred applying the no-aid provision to exclude religious schools, the Montana Supreme Court should have disregarded that state-law restriction under the Supremacy Clause. Without a valid state constitutional violation, the court had no basis to terminate the legislative program.

The Court therefore reversed and remanded. It did not address the parents’ Equal Protection or Establishment Clause claims because the Free Exercise holding supplied complete relief.

Concurrences

Justice Thomas

Reasoning

Justice Thomas agreed that Montana’s no-aid provision violated free exercise, but wrote to argue that the Court’s modern Establishment Clause doctrine has improperly restricted religious liberty. In his view, the Establishment Clause originally restrained the federal government from imposing an established religion on the States and did not demand broad governmental neutrality between religion and nonreligion.

He maintained that the Court’s modern separationist approach treats the Establishment Clause as a broad anti-religion command. Governments then invoke supposed antiestablishment interests to defend burdens on free exercise, as Montana did here. Thomas viewed Locke as an example because its approval of a refusal to fund devotional theology rested partly on an erroneous conception of antiestablishment interests.

Thomas argued that the Establishment Clause, properly understood, protects against coercive religious orthodoxy and compelled support enforced by law, not ordinary governmental acknowledgment or support of religion. He concluded that restoring the Clause to that narrower historical scope would reduce the recurring use of establishment concerns to diminish free-exercise rights.

Justice Alito

Reasoning

Justice Alito joined the Court’s opinion but emphasized the historical origins of Montana’s no-aid provision. He reasoned that, under the Court’s recent attention to discriminatory origins in Ramos v. Louisiana, the anti-Catholic background of Blaine-style provisions was relevant to understanding Montana’s constitutional rule.

He described the nineteenth-century common-school movement as often promoting a Protestant religious outlook, including Bible reading. Catholic communities seeking public support for their own schools encountered intense nativist opposition. In that setting, “sectarian” commonly operated as a code word for Catholic institutions.

Alito rejected the argument that Montana’s 1972 readoption of the provision erased that history. The convention retained materially identical language and rejected a proposal to remove its ban on indirect aid, despite delegates’ awareness of the provision’s bigoted past. He stressed that the program mattered most to less affluent families who could not otherwise afford educational choices available to wealthier parents.

Justice Gorsuch

Reasoning

Justice Gorsuch joined the majority but questioned the usefulness of distinguishing religious-status discrimination from discrimination based on religious use, activity, or conduct. The record, he noted, included concern over religious schools’ teaching and religious parents’ desire for their children to receive a faith-based education, making the case difficult to describe as solely status based.

In his view, the distinction does not affect the constitutional result. The Free Exercise Clause protects not merely inward belief or the status of being religious; it protects outward religious conduct and practice. The original meaning of “exercise” encompassed actual use, practice, and performance.

Gorsuch relied on cases protecting religious conduct, including door-to-door proselytizing, refusal to work on a Sabbath, refusal to produce military equipment, and parents’ religious decisions about their children’s education. A government benefit conditioned on abandoning religious activity burdens free exercise just as surely as one conditioned on abandoning religious status.

Montana therefore could not tell parents that school choice was available only if they avoided accredited religious schools. Whether labeled status-based or use-based discrimination, the condition on the scholarship program violated the Free Exercise Clause absent a compelling and narrowly tailored justification.

Dissents

Justice Ginsburg

Reasoning

Justice Ginsburg argued that the Court should have rejected the free-exercise claim because the Montana Supreme Court invalidated the scholarship program for everyone. Once both secular and religious private schools became ineligible, there was no differential treatment based on religion and no pressure on parents to abandon their faith or their choice of religious schooling.

In her view, Trinity Lutheran was inapposite because Missouri had made a church ineligible for an otherwise available playground grant. Montana’s final judgment did not put parents to a choice between religious schooling and government aid; no scholarship aid remained for any private-school parent.

Ginsburg disagreed with the majority’s account that the state court first excluded religious schools and then invalidated the program. The state court found the program inconsistent with the state constitution and declined to rewrite it to exclude religious schools. It instead chose the constitutionally permissible course of declining to fund all private schools.

She concluded that the Court effectively addressed the facial validity of Montana’s no-aid provision even though the petitioners disclaimed a facial challenge and the state courts had not decided that question. Because Montana’s judgment treated all private-school parents alike, she would have affirmed without reaching the broader constitutional issue.

Justice Breyer

Reasoning

Justice Breyer accepted for purposes of his opinion that the parents’ claim remained live after the program was invalidated, but concluded that Montana’s exclusion was constitutional. He emphasized the traditional “play in the joints” between the Establishment and Free Exercise Clauses: a State may sometimes choose greater separation from religious funding than the Establishment Clause itself demands without violating free exercise.

Breyer read Locke, rather than Trinity Lutheran, as the controlling precedent. Locke allowed Washington to refuse scholarship funding for devotional theology because the State had chosen not to fund an essentially religious endeavor. Similarly, Montana could decline to subsidize religious education, which often seeks to form students’ religious beliefs and values.

He found a substantial historical basis for Montana’s concern about compelled taxpayer support of religious teaching. Drawing on Madison and Jefferson, Breyer reasoned that both clergy training and religious-school instruction raise concerns about forcing taxpayers to support religious doctrines with which they disagree and about producing religious division.

Breyer criticized the majority for replacing a context-sensitive approach with strict scrutiny whenever public benefits are withheld based on religion. In his view, religion-benefit disputes require practical judgment because programs differ and government funding can create difficult problems involving religious minorities, institutional autonomy, eligibility conditions, and perceived favoritism.

Justice Sotomayor

Reasoning

Justice Sotomayor argued first that the Court lacked a live case to decide. The Montana Supreme Court invalidated the tax-credit program on state-law grounds, leaving neither secular nor religious schools eligible for benefits. Petitioners thus faced no unequal treatment or coercion, and their asserted injury could not be remedied without requiring Montana to recreate a program that no longer existed.

She faulted the majority for treating the case as though it presented a facial challenge to Montana’s no-aid provision, despite the petitioners’ express disclaimer of such a challenge. The state court had declined to decide federal issues, so the Court’s reframed question was not properly presented, preserved, or necessary to alter the state-law judgment.

On the merits, Sotomayor maintained that Trinity Lutheran was wrongly decided and should not compel State funding of religious education. Before Trinity Lutheran, the Court recognized that government could distinguish religious entities from secular ones when the interests embodied in both Religion Clauses justified that distinction.

She viewed Locke as closely analogous because petitioners sought taxpayer support for religious schooling. A State’s decision not to subsidize religious activity is not the same as suppressing it. Montana could seek to avoid establishment concerns, taxpayer objections to financing religious instruction, and entanglement between government and religious institutions without violating free exercise.