The Supreme Court Hears Oral Arguments in a Key Religious-Freedom Case

John Hirschauer

In 2015, the state of Montana instituted a policy that allowed taxpayers who donated to organizations providing students with private-school scholarships to deduct up to $150 from their state tax bills. The Montana Department of Revenue was charged with implementing the initiative and ensuring that it complied with the state’s constitution. While the program had no overt religious component, certain families used the scholarship monies to help send their children to religious schools. The Department of Revenue, concerned that this violated the state constitution’s so-called Blaine amendment, which bars the provision of public funds to religious schools, issued a rule preventing any scholarship money donated under the program from going toward such schools.

Three mothers who had sent their children to religious schools with the help of the program, and who saw their children’s scholarships withdrawn after the Department of Revenue issued its rule, subsequently sued, alleging that the state’s Blaine amendment violates the free-exercise clause of the U.S. Constitution’s First Amendment. The women took their case, Espinoza v. Montana Department of Revenue, up through the state court circuit, and it eventually made its way to the Supreme Court.

The opening arguments in the case, which the Court heard last week, were, in large measure, devoted to a debate over the application of two previous Court decisions — Locke v. Davey and Trinity Lutheran v. Comer. Locke is an oft-cited First Amendment case from 2004, in which the Court weighed whether a Washington-state scholarship program that prohibited beneficiaries from using the grant on a degree in devotional theology violated the free-exercise rights of the plaintiffs. A seven-justice majority on the Court held that placing such limits on the use of publicly funded private-school scholarships was not unconstitutional, given what the Court called the “play in the joints” between the establishment and free-exercise clauses of the First Amendment.

The respondents in last week’s oral arguments asserted that while Locke is not perfectly analogous to Espinoza — one concerned ministerial training while the other concerns secondary education — it is sufficiently so that the logic of the decision in the former case should be applied to the latter. “Locke involved funding of the ministry,” the respondents’ counsel conceded, but claimed that Espinoza did too, namely, “the ministry of [religious school] teachers towards their students.”

That’s where the Court’s ruling in the 2017 case Trinity Lutheran v. Comer comes in. In Trinity Lutheran, representatives of a religious school based in Missouri successfully argued that they were subjected to unconstitutional discrimination by the state government because of their religious beliefs.

As NR’s John McCormack described last week, the central question raised by Trinity Lutheran was whether it was constitutional for the state of Missouri to deny a neutral public benefit to a qualified religious institution solely on account of its status as a religious organization. The Court answered in the affirmative, citing its decision in the 1947 case Everson v. Board of Education, which held that a state “cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”

One objection raised by the respondents in the Trinity case and discussed by the justices in Espinoza is the argument that funding a religious school’s secular functions indirectly subsidizes its sectarian activities. According to this argument, since giving a religious school a grant for secular purposes allows it to spend money it otherwise would’ve used for said purposes on its sectarian activities, an ostensibly even-handed treatment of secular and religious schools would still subsidize religion in a manner inconsistent with the establishment clause.

This is true inasmuch as money is fungible. But its implication — that no public funding whatever can flow to religious institutions on establishment-clause grounds — raises much thornier questions. For instance: Should religious schools not be protected by taxpayer-funded police and firefighting services? The state’s provision of those basic services, after all, frees up dollars for proselytism.

Ultimately, the Court in Trinity rejected the fungibility argument, a position that Justice Stephen Breyer reaffirmed in the opening arguments of Espinoza. The proposition, Breyer said, that the state will “give police protection to all schools, all people, but no religious institution” is a facially “unconstitutional” one. Lawyers for the mothers suing in Espinoza agreed, arguing that the revocation of their children’s scholarships was an unconstitutional exercise in religious discrimination: the denial of a neutral public benefit — a scholarship to be used as they please — because of their status as religious persons.

Justice Brett Kavanaugh’s rejoinder to the respondents during opening arguments helps to explain the fundamental difference between Espinoza and Locke. While he conceded that “funding religion, funding religious schools generally or training of clergy is . . . an establishment clause-concern,” as argued in Locke, Kavanaugh claimed that Espinoza raises “a separate issue when you set up a neutral-benefit program — police, fire, or scholarships — and allow people to use those things, allow religious institutions to obtain the benefits of those things on a non-discriminatory basis.”

Kavanaugh’s assertion reaches the question at the heart of Espinoza: Is it constitutional for a state to withhold a neutral public benefit — here, a scholarship that parents can use at either a secular or religious private school — because the recipient of that benefit might use it in furtherance of a religious end? The plaintiffs acknowledge that states do not have an obligation to subsidize private education. If a state decides to do so, however, it has a constitutional duty to treat all of its citizens, religious and non-religious alike, with an even hand. That duty is what’s at stake here, and we won’t have to wait too long to know the outcome: A ruling is expected this summer.

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