The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When I moderated a debate on Espinoza v. Montana Dep't of Revenue, I had a question for one of the Institute for Justice lawyers who represents Ms. Espinoza (and others, including Linda Greenhouse, had asked the same question as well). Here's the issue:
- A Montana school choice programs let parents use certain tax credits to pay for education at private schools, whether religious or secular.
- The Montana Supreme Court held that this violates a Montana Constitution provision, which bars the government from making "any direct or indirect appropriation or payment from any public fund … for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination."
- But rather than limiting the tax credit program to apply only to nonreligious private schools (which would have been much like what the Missouri government had done for the playground resurfacing grants in Trinity Lutheran Church v. Comer (2017)), the Montana court struck down the tax credit program altogether, as applied to secular schools as well as religious ones.
- The plaintiffs argue that this decision violates the Free Exercise Clause because it is religiously discriminatory.
- But, I asked, is it really religiously discriminatory, given that now all Montana private schools, religious and secular, are equally denied the tax credit?
The IJ people gave an answer there, and IJ's David Hodges has kindly written it up for me to post:
In September, Linda Greenhouse of the New York Timesnoted something "odd" about Espinoza v. Montana Department of Revenue, a case that the Institute for Justice (IJ) will be arguing before the Supreme Court on January 22. Espinoza will determine whether the Montana Supreme Court was correct to shut down a school choice program that allowed parents to select religious schools as part of a generally available tax credit scholarship program. That court ruled that the program violated the state constitution's prohibition on "indirect" funding of religious institutions.
What was odd to Greenhouse is IJ's argument that a decision that prevented everyone—including the religious—from receiving a benefit could violate the religious neutrality principle of the First Amendment. After all, Greenhouse wrote, the Supreme Court in Palmer v. Thompson upheld a city's decision to defy a swimming pool-integration order by closing the pool on the grounds that both the white and black residents of the town were equally deprived of a place to swim. The logic in Espinoza would seemingly follow: If a benefit is denied to everyone—black and white, religious and secular—then how can it discriminate against anyone? Put another way, so long as the effect is the same, how can the cause matter?
The answer lies in an Anatole France quote that the justices sometimes use to needle one another when they see a law as having an obvious pretext: "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." For the Montana Supreme Court, the majestic equality of the law forbids both the religious and nonreligious to attend parochial school.
The underlying dynamic in Espinoza is not new to the Court. The desegregation era was replete with examples of cities justifying discrimination against African Americans by claiming the laws applied to everyone. For example, in Orleans Parish School Board v. Bush, the Court affirmed an injunction against Louisiana when it closed its public schools to avoid a desegregation mandate. In Griffin v. County School Board, the Court held that eliminating a public program to prevent the inclusion of a protected class is the same kind of unconstitutional discrimination as excluding that class in the first place. Finally, in Village of Arlington Heights v. Metro House Development Corporation, the Court explained that "[w]hen there is a proof that a discriminatory purpose has been a motivating factor in the decision…judicial deference is no longer justified."
Given this context, Palmer is an outlier. In Palmer, the Court wrote that it was unclear whether the pool was closed for discriminatory reasons or benign ones like economic considerations. Absent more compelling evidence, the Court did not want to assume motive.
In Espinoza, by contrast, the Montana Supreme Court explicitly struck down the program because it included religious options. Simply put, if there were no religious options, the program would stand, but since there were religious options, the program had to go. Also unlike Palmer, there was no ambiguity in the record about whether the program was ended for discriminatory or budgetary reasons. (And this is without even addressing the sordid national and state history of anti-Catholic animus behind the Montana constitutional provision at issue known as the Blaine Amendment.) Finally, even if there were no "bad motives," the text of the state constitutional provision itself clashed with the federal Constitution by disqualifying educational options because of religion—and nothing more.
In any event, both the perspective of time and subsequent caselaw have cast doubt on "neutral" laws and provisions that, as in Palmer, only seem to disadvantage one type of party. As the Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, a case that involved a state provision similar to that in Espinoza, excluding a party "from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand."
In Espinoza, where the public benefit is for an individual, not a church, it would be an even greater constitutional injury to deny that benefit merely because it might be used at a religious school. As it was in matters of race, so too must it be in other consequential areas of constitutional law.
I'm on balance tentatively persuaded by this argument, but I'd be glad to also post a response, if someone is inclined to offer it.