Some Thoughts on the Espinoza Argument

|The Volokh Conspiracy |

I'd like to thank Eugene for inviting me to join the VC, and to my fellow bloggers for having me. I'm really looking forward to posting here!

For my first contribution, I thought I'd post a brief comment about Espinoza v. Montana Dep't of Revenue, the Blaine Amendment case that the Court currently has under consideration. The Court heard oral argument in the case last week. It's always tricky predicting the outcome of a case based on oral argument. But it seems pretty clear, at least to me, the the Court will ultimately rule in favor of the petitioners.

Followers of this blog know the facts of the case. (Ilya recently posted about the case here.) Briefly, Espinoza concerns the constitutionality of a Montana school-choice program that allows parents to direct state-funded scholarships to religiously affiliated schools. The Montana Supreme Court ruled that the program violated the state constitution's "Blaine Amendment," which prohibits the appropriation of public money for "sectarian" institutions, including private, religiously affiliated schools. Petitioners argue that excluding them from otherwise available scholarship funds, simply because they planned to use the funds at a religiously affiliated school, violates the federal Free Exercise Clause.

Based on the Justices' interventions, the Court seems likely to rule that, in these circumstances, barring parents from using public funds to pay tuition at religiously affiliated schools is unconstitutional. The Court's cases point to that outcome. Zelman holds that the Establishment Clause isn't violated when public money reaches religiously affiliated schools "wholly as a result" of parents' "genuine and independent choice." Trinity Lutheran Church holds that a state cannot deny a school access to public financial assistance simply because the school has a religious character. When you put these two cases together, it seems to me, the petitioners prevail.

That's not to say their victory will be sweeping. For one thing, the Court seems likely to limit its holding to the facts of this case and avoid a ruling on the constitutionality of Blaine Amendments more generally. At least that's what the Justices' interventions suggest. Moreover, the four progressive Justices signaled their strong disagreement with the petitioners' Free Exercise argument.

Interestingly, two of the progressive Justices, Kagan and Breyer, who joined the Court in Trinity Lutheran Church, indicated that they see this case as quite different. Trinity Lutheran Church involved state funds specifically for playground refurbishment–a use unrelated to the religious character of the school in question. Espinoza, by contrast, involves unrestricted funds that a school presumably could direct towards religious education. There is a case that suggests a state may refuse to allow its tax money to be spent for those purposes. But that case, Locke v. Davey, involved tax money for clergy training, not for general education at an accredited, religiously affiliated school–a distinction that will probably persuade the Court's conservatives that Locke doesn't apply here.

In short, oral argument suggests another of those familiar, narrow, 5 to 4, Religion Clause decisions. If that's the case, Espinoza will be an important victory for school choice advocates–though perhaps not as sweeping as they might have hoped. Stay tuned.

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  1. You didn’t address the argument there is no Free Exercise violation because, unlike in Trinity, no one gets funding in the wake of the Montana court ruling.

    1. I believe that was addressed in an earlier post about an earlier Supreme Court ruling, which held that repealing a law to avoid enforcing it properly was a no-no. But IANAL!

    2. The Montana Supreme Court fashioned its resolution based on the belief that the tax credit program had to comply with Article X Section 6 of the Montana constitution. If SCOTUS remands for reconsideration after finding that they were wrong, that applying that provision here would violate Free Exercise, Montana SC won’t reach the same result.

    3. Under the Supreme Court case of Arlington Heights v Metropolitan Housing if a unit of state government does something for an unconstitutional discriminatory reason, the action is unconstitutional even though it would have been constitutional if done for a different reason.

      The Montana statue in this case by its terms provided for aid to both religious and non-religious schools while also requiring adherence to that part of the Montana constitution that prohibits aid to “sectarian schools.” (Not sure how they thought they were going to swing this.) The petitioners claim that the state supreme court invalidated the statute for an unconstitutional reason (to discriminate against religion) and therefore the court’s action should be struck down. But, according to the petitioners, if the legislature in 2023 decides not to re-enact this very statute, for reasons based on the same no-aid concerns at work in this case, there would be no constitutional concern. Lots of obscure reasoning at work here.

  2. “But that case, Locke v. Davey, involved tax money for clergy training, not for general education at an accredited, religiously affiliated school”

    Minor quibble: IIRC Davey was enrolled as a double major in business and theology. He was independently qualified for the scholarship because he was enrolled in the business program, and would have been qualified had he simply undeclared his theology major. But he was disqualified because he was studying theology in addition to his business major.

  3. “Moreover, the four progressive Justices signaled their strong disagreement with the petitioners’ Free Exercise argument.”

    Of course. Its like the 2nd Amendment, part of the Bill of Rights that “liberals” don’t like and try to ignore. They used to like it, when it was fringe [Jehovah Witness] and wacky [smoking peyote] people seeking relief. Now its mainstream believers so they are seeking to write it out of the Constitution.

    1. That’s a ridiculous comment. This is a very vexing issue- not to put a fine point on it, but the notion that the religion clauses permit some governmental limitations on funding of religious indoctrination is a completely plausible position. Indeed, it is even a plausible position- though we are far away from this- that the Establishment Clause requires some limitations on funding of religious indoctrination.

      On the other hand, it is also a plausible position that the religion clauses do not permit discrimination in favor of non-religion and against religion in the implementation of generally applicable government programs.

      As I said, this is a difficult issue. Nobody’s trying to write anything out of the Constitution. They are all trying to make sense of one of the most ambiguous and difficult to interpret parts of it.

      1. As with anti-abortion absolutism and gun nuttery, the mainstream snapback against those pushing limitless special privilege for religious claimants is going to be welcome, deserved, and perhaps severe.

        1. The People mandated government neither aid nor harm religion.

          I’ll bet you have no problem with laws of general aplicability hurting religious free exercise, so why against the helping?

          1. Teaching nonsense to children in what purports to be a school is child abuse.

            1. Rev., while I am not a fan of teaching children religion (I would prefer people grow up and then make free choices as to what they want to believe), this is a classic example where it doesn’t matter what I might believe as a matter of history, the text and history of the Constitution are absolutely 100 percent clear that part of the right to free exercise is the right to bring your children up in the religion of your choosing.

              Any “child abuse” statute that defined the mere teaching of religious beliefs to a child as “child abuse” would be a clear violation of the First Amendment, and it would be a 9-0 Supreme Court decision.

              1. Do you believe a school that teaches that ‘one plus one equals five,’ ‘storks deliver babies,’ and ‘the moon is made of green cheese’ should be accredited? Does it matter whether anyone is making a religious claim in that context?

                Parents can tell their children what they wish. The bigoted, the superstitious, the delusional, and the ignorant have rights, too.

                But the state is not only entitled but also obligated to require that children be educated (regardless of parental wishes) and to establish and enforce standards with respect to compulsory education. Parents’ religious positions should be entirely disregarded in that context.

                1. Accreditation isn’t a constitutional issue, Rev. Anyone who runs an accreditation agency has broad freedoms to decide who to accredit.

                  But you are flatly incorrect about the state. There is a very broad privilege afforded to the state to be able to deliver speech and control its message, as long as it doesn’t create a public form. So, for instance, a state can place anti-drug advertisements that might be full of lies about drugs, and it doesn’t have to give equal time for a pro-drug message. In Rust v. Sullivan, the Supreme Court held that where medical care was federally funded, the government could prohibit doctors from using those federal funds to deliver a message in favor of abortion.

                  So while an accreditation agency can de-accredit a school that teaches 1 plus 1 equals 5. the government can create whatever curriculum for the public schools it wishes to, limited only by the religion clauses.

                  And none of this has anything to do with parental rights. Parents have the right not to send their children to schools, Wisconsin v. Yoder, and can send their children to private schools where they are taught things the government considers to be false, Pierce v. Society of Sisters. You may not like any of this, but the Constitution is against you.

  4. I’m uncomfortable with the leap from government making no law”…prohibiting the free exercise” of religion, to religious organizations are entitled to their share of taxpayer largesse. Denying religious schools participation in state-funded scholarships doesn’t deny anyone their free exercise of religion, nor would denying a church money to resurface its playground.

    As broadly as religious advocates are willing to interpret the free exercise clause, it seems many of them then turn around and argue for an incredibly narrow interpretation of the establishment clause.

    1. It is a lot easier to view it in equal protection terms. The government is discriminating against religion without a narrowly-tailored remedy for a compelling state interest.

      Religions are often discrete and insular minorities, falling within the Carolene Products FN, so I don’t see how the government can avid that by lumping them all together.

      Analytically, this makes a lot more sense than trying to shoehorn these cases into a Free Exercise ro Establishment Clause analysis.

      1. Where exactly is the discrimination?

        1. In Trinity, the school was being disfavored compared to secular schools because it was operated by the Lutheran church.

        2. The discrimination is, we hand out money to private secular schools, but not private religious schools. (The scheme here is actually a more complicated tax credit scheme, but it’s the same idea.)

          A state certainly can say, we only fund public schools. You want a private school, secular or religious, fund it on your own. I don’t see any Constitutional problem with that.

          But saying you will fund private schools but disqualify religious schools is discrminatory. Whether that might be allowed because of the tension between the Establishment and Free Exercise Clauses is debatable. But it is discrimination.

          1. The discrimination is, we hand out money to private secular schools, but not private religious schools.

            But as this case ended in Montana there was no money handed out to private secular schools but not private religious schools.

            1. That’s true. I posted about this in the other thread. The problem is how the Montana Supreme Court got there. The Montana legislature wanted to give the tax credit to everyone.

              The Montana Supreme Court said, you can’t do that because of Montana’s Blaine Amendment. OTOH, you cannot just limit it to secular private schools because of the 1st Amendment. So we rule, no money for anyone.

              So the problem is, the Montana Supreme Court was trying to harmonize one rule that says, you must discriminate, against another that says, you must not. And was forced to end up with, no money for any private school. Crediting their Blaine amendment was a problem.

              I agree this is a unique situation — the end result is non-discriminatory, but the way the court got there was discriminatory. Whether SCOTUS will allow that remains to be seen.

              1. OTOH, you cannot just limit it to secular private schools because of the 1st Amendment.

                I don’t think that’s quite right, Montana SC didn’t find a First Amendment problem, in fact they were rather dismissive of federal constitutional issues. They said the statute violated the state constitution and the attempt to cure it failed because that would require amending the statute which necessitates legislative action rather than rulemaking.

            2. To further illustrate, imagine a state (say Mississippi) had a provision in its constitution that no public moneys may be expended for after-school programs for Negroes. The legislature then expends funds for such programs for all children, white or black. The law is challenged, and the state Supreme Court then is faced with a contradiction between the State constitutional provision and the federal 14th Amendment.

              Now I would think the proper course is to say, the state provision is unconstitutional as it is pre-empted by the 14th Amendment. And so the money can flow to all children. What if, instead, the state Supreme Court says, we have to preserve both provisions, so we are cancelling the program entirely?

              The end result is non-discriminatory. But the Court got there by crediting a discriminatory state constitutional provision.

              1. But there’d be no constitutional problem if the state, ordered by a federal court to fund after-school programs for everybody, decided instead to abolish the after-school program funding, right?

      2. “It is a lot easier to view it in equal protection terms…”

        Ridgeway, that may well be true. But Prof. Movsesian’s OP clearly framed the argument in free exercise terms: “Petitioners argue that excluding them from otherwise available scholarship funds, simply because they planned to use the funds at a religiously affiliated school, violates the federal Free Exercise Clause.”

        That is what I’m questioning. Exactly what is the Free Exercise violation?

    2. The government monstrosity steals more and more wealth and property from the people, and appropriates more and more of their liberty and decisionmaking. This is done on the pretense of government knowing what’s best for us, and of “giving back” the property as education, health care and so on (after taking their 90% cut).

      But don’t worry you’re still free to do what you want, yeah, totally.

      1. Good luck persuading America to pursue your government-free disaffected clinger utopia.

        1. Im not an anarchist nor one for a government-free utopia. Not at all. But I do think individuals should have more choice. Less government, but especially a more individualized and repsonsive government, i.e. local, would result in more individual prosperity and freedom than the alternative, in my opinion.

          1. “Im not an anarchist nor one for a government-free utopia. Not at all.”

            You just choose to sound like one.

    3. “Denying religious schools participation in state-funded scholarships doesn’t deny anyone their free exercise of religion, nor would denying a church money to resurface its playground.”
      Your position is flatly wrong. It does deny them free exercise, if they are not able to enjoy generally applicable benefits, purely because they are religious. That isn’t a broad reading at all, it is basic reasoning.
      Religious groups incidentally benefiting from general programs does not in any way implicate the Establishment Clause, which affects the government deliberately giving benefits for being religious. Once again, that isn’t a narrow interpretation, it is basic reasoning.

  5. Professor Morvesian, welcome to VC! I look forward to reading your contributions here over many years. For those contributions, however, can you please consider going much deeper than this surface piece you just posted? There’s nothing in here we can’t read from any media reports of the oral arguments. Importantly, you didn’t write about standing and about the calculus then Chief has to make between narrow rulings, his own religiosity, and the facts of the case (most importantly the standing question). As a religion expert and a religion and law expert, we would take great value from deeper insight from you on SCOTUS establishment clause and free exercise clause (and relevant 1A) cases.

    Warm regards,
    A loyal VC reader since 2004

  6. Chief Justice Roberts asked a question about the impact of the Montana Supreme Court decision suggesting he was at least considering throwing the case out on narrow grounds, because the Montana Supreme Court decision resulted in treating religious and non-religious schools equally. Whether considered a standing or a merits factor, a decision on those grounds would likely postpone a decision on the underlying constitutional issues for another case.

  7. Schools that teach nonsense — whether ‘one plus one equals seven,’ or creationism, or ‘storks deliver babies,’ or ‘the Bible is nonfiction,’ or ‘the moon is made of green cheese,’ or ‘evolution is a demonic hoax’ — should be neither funded by taxpayers nor accredited by mainstream American society. Schools that suppress science and warp history to flatter superstition are not legitimate educational institutions. That nonsense (much like bigotry) is cloaked in religion does not improve it.

    Religious claimants have become accustomed to ‘heads we win, tails you lose’ because Republicans have fostered that approach. ‘We can discriminate against everyone else, but no one can discriminate against us.’ A university recently was deemed immune to labor laws (faculty unionization) because of a superstition-based claim.

    As progress continues and society becomes less religious, religious claimants may, after experiencing snapback against this overreaching, regret that they pushed for limitless, unfair, undeserved privilege.

    1. If anything, Mr. Kirkland understates the case for using all necessary means to wipe out the theocratic virus.

      1. Hence the need for the First Amendment.

        1. People are entitled to believe as they wish. They are entitled to worship as they choose.

          They are not entitled to abuse children with special rules that protect schools that teach nonsense. They also are not entitled to have taxpayers fund their superstition.

          The rules being promoted by religious claimants today are going to be hellish when used by a reason-based mainstream against religious minorities someday. And, until then, more people are going to attempt to benefit from those special privileges. So far as I am aware, these neither is nor should be a requirement that claims for religious privilege be based on old-timey superstition. Any conscience-based position should — and eventually will — qualify. When conscience-based positions are used against superstition-based positions, the battles are likely to be fascinating.

          1. So far as I am aware, these neither is nor should be a requirement that claims for religious privilege be based on old-timey superstition. Any conscience-based position should — and eventually will — qualify.

            Michael Crichton claimed that environmentalism, for many people, checks all the boxes for a religious belief. Others assert that, for some, Darwinism serves the same purpose. Perhaps the sky is the limit as to the beliefs that could serve the same purpose as religion. Providing first amendment protection for them all seems a little tricky.

            1. Michael Crichton also claimed you could make dinosaurs out of mosquitos trapped in amber.

              1. Michael Crichton also claimed you could make dinosaurs out of mosquitos trapped in amber.

                I know that was the plot of one of his novels. Did he also claim that?

    2. To Rev. Arthur L. Kirkland,

      I have repeatedly said I think that the position that government should not fund religious institutions has potentially rational motivations and is not based purely on anti-religious animus.

      But if I am ever persuaded otherwise, it will undoubtedly be due in no small part to your considerable rhetorical skills. Your arguments are sometimes so persuasive, you just might end up convincing me that my current position is wrong.

      1. I’m not trying to persuade clingers. I’m awaiting their replacement.

        A school that teaches nonsense with no religious component is no better — and no worse — than a school that teaches superstition-based nonsense.

        1. Many public schools teach nonsense.

          1. Good luck with persuading the educated, reasoning, liberal-libertarian mainstream that your position is sound.

            You should be able to make some hay in West Virginia, Mississippi, Oklahoma, Wyoming, and Alabama, though.

          2. “Many public schools teach nonsense.”

            True enough. Take “abstinence-only” sex education, for example.

  8. Montana should be entitled to decide this affair for themselves.

    1. You coming out against the 14th Amendment? Or the Union?

      1. First answer the normative question. Do you think, ideally, Montana should be free to decide their own basic constitutional issues?

  9. The problem with free exercise of religion is that the person who gets to say what their religion is, and what exercise it requires, is the individual. Which means that if you actually do allow unlimited “free exercise”, anyone can do anything and then say “my religion says it’s OK!”

  10. Given the direction of the modern left, it would have been a better case to take a non-Christian case to the Supreme Court. Michigan, for example, has a Blaine Amendment, a large Muslim population, and provides public funds and public lands to explicitly religious institutions.

    Unfortunately, when a religious group and the state collude to violate its own constitution no one else has standing.

    1. The conditions that provide limitless privilege for (certain) religion are changing as America continues to improve.

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