Constitutional Law

In Another 5-4 SCOTUS Decision, Religious Schools Can Now Get Gov’t Funding

This SCOTUS season is turning this into a full-time Supreme Court Blog which is not what it is supposed to be. But these past few decisions have been so important -not just for the decisions themselves, but as a window into this divided, politicized Court, that I wanted to write about them.

In a huge win for backers of school choice including Education Secretary Betsy DeVos, SCOTUS yesterday sided with three Montana families who asked the court to declare that excluding religious schools from student aid programs is unconstitutional.

The case, Espinoza v. Montana Department of Revenue, which has drawn intense interest from the Trump administration, could have major implications for the use of public dollars to pay for religious schools. My wife and I raised out three sons in the Herricks School District on Long Island NY; it was a case from Herricks that ended prayer in schools. Who knows how that case would have been decided today with SCOTUS approval of State funds going to religious organizations.

FACTS: The Montana Legislature established a program that grants tax credits to those who donate to organizations that award scholarships for private school tuition. A family whose child is awarded a scholarship under the program may use it at any “qualified education provider”—
that is, any private school that meets certain accreditation, testing, and safety requirements. Virtually every private school in Montana qualifies. Upon receiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholarship funds directly to the school. Neither the scholarship organization nor its donors can restrict
awards to particular schools.

To reconcile the program with a provision of the Montana Constitution that bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, §6(1), the Montana Department of Revenue promulgated “Rule 1,” which prohibited families from using the scholarships at religious schools. These type of provisions exist in nearly 40 states, and are also known as “Blaine Amendments.” Blaine Amendments are controversial state constitutional provisions originally rooted in 19th century anti-Catholic bigotry. Their purpose was to prevent the government from funding Catholic schools. States continue to maintain “Blaine Amendments” not to discriminate against Catholics but to keep a line between Church and State.  

Three mothers who were blocked by Rule 1 from using scholarship funds for their children’s tuition at Stillwater Christian School sued the Department in state court, alleging that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen. The trial court enjoined Rule 1 from being applied. Reversing, the Montana Supreme Court held that the program, unmodified by Rule 1, aided religious schools in violation of the Montana Constitution’s no-aid provision. The Montana Supreme Court further held that the violation required invalidating the entire program.

The case presents the struggle between the First Amendment’s promise of the Free Exercise of Religion and the Establishment Clause, the promise that the government will do nothing to “establish” a religion.

SCOTUS, in another fractured 5-4 decision, held that Rule 1 violated the Free Exercise Clause and that the State Supreme Court had no right to invalidate the entire program.

Justice Roberts’ Majority Opinion joined by Thomas, Alito, Gorsuch and Kavanaugh

Roberts held that Rule 1 impinges on the Free Exercise clause because it discriminates against schools merely because they are owned by religious institutions. He cited the 2017 case of Trinity Lutheran Church v. Comer, which reversed denial of money from the State to a Christian school to repave its playground. The State had argued that Trinity did not apply because those were general funds available to all schools for use for facilities while these are funds directly for education so it amounted to State-funded religious education. (Trinity was the first SCOTUS case that allowed direct money to go from the State to a religious institution in this manner.) Roberts disagreed with the State’s argument saying that this was discrimination based on “religious status” not on “religious use.” He noted that the law did not prohibit money just for religious use but for any school owned by a religious institution. (But the money was for a tuition scholarship – so it could not be used for anything but education!) Roberts went on that this blanket restriction “inevitably deters or discourages the
exercise of First Amendment rights.”

Roberts distinguished this case from the Court’s 2004 precedent of Locke v. Davey, which upheld a Washington State law prohibiting State scholarship money to be used by the defendant to get educated as a minister. Thus, Roberts said, Mr. Davey “was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry” not the religious status of the school. Again, this is to me a tortured distinction. The parents (like Davey) get scholarship money from the State (like Davey) and then use it for religious education (like Davey). Its clearly a religious use.

Roberts made sure to put in the decision that the original source of the Blaine amendments was Anti-Catholic discrimination and that many States -even those with Blaine amendments – allow funds to go to religious institutions through vouchers and other programs.

The Montana Supreme Court asserted that the no-aid provision serves Montana’s interest in separating church and State “more fiercely” than the Federal Constitution. (A State Constitution can guarantee more rights than the Federal Constitution, but not less). Roberts held “that interest cannot qualify as compelling” in the face of the infringement of free exercise here: “A State’s interest in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause. . . . A State need not subsidize private education. But once a
State decides to do so, it cannot disqualify some private schools solely because they are religious.” Roberts also said that the problem was not solved by the Montana Supreme Court ending the program entirely since only the Legislature can do that.

Justice Thomas’ Concurrence, joined by Gorsuch

Thomas wanted to make clear that he believes the Establishment Clause is basically overrated. He argues (as he has in many other cases) that Supreme Court jurisprudence on this Clause has been wrong from the beginning.:

“As this Court stated in its first case applying the Establishment Clause to the States, the government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another. This “equality principle,” the theory goes, prohibits the government from expressing any preference for religion—or even permitting any signs of religion in the governmental realm. Thus, when a plaintiff brings a free exercise claim, the government may defend its law, as Montana did here, on the ground that the law’s restrictions are required to prevent it from “establishing” religion.”

But that’s wrong , he says. His view is that the Clause served only to “protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government. Under this view, the Clause resists incorporation against the States.” So as per Thomas (and now Gorsuch) States can freely establish religions I guess.

He calls the Court’s long-established case of Lemon v. Kurtzman which set guidelines for drawing the line between Establishment and Free Exercise, “infamous.” He said it has been used to denigrate “those who continue to adhere to traditional moral standards, as well as laws even remotely
influenced by such standards, as outmoded at best and bigoted at worst.” In support of this statement, he cites Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n (baker not allowed to refuse to sell cake to couple for legal gay marriage) and Obergefell v. Hodges (States cannot prohibit gay marriage). “So long as this hostility remains, fostered by our distorted understanding of the Establishment Clause, free exercise rights will continue to suffer.” For a jurist who claims to love and adhere to the Founding Fathers, he envisions an America far different from the one envisioned by Madison, Jefferson and Monroe.

Justice Alito’s Concurrence

Alito decided to write a lengthy dissertation on the Anti-Catholic foundations of Blaine Amendments, poo-pooing the undisputed fact that most States (including Montana) specifically reconvened conventions to re-pass these laws without a discriminatory basis. Montana in particular even made sure that many Catholic voices were invited to the Constitutional convention and were heard in support of the new version of the Blaine Amendment. Alito says “never mind that” and says that the foundation of the laws taints all these laws. Permanently I guess? Even if they were specifically re-drafted to start a new life without any discriminatory basis?

But Alito also wanted to make clear that he feels that there should be essentially full and direct funding by States of religious private schools since the rich can do this any way – so why keep the poor from this right?:

Today’s public schools are quite different from those envisioned by Horace Mann, but many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. . .. The [Montana] program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice. The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that “‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’”

Justice Gorsuch’s Concurrence

Apparently eager to show that he is even more in favor of basically undoing the Establishment Clause, Gorsuch wrote to opine that even if the scholarship money was for religious use he would uphold the program being used by religious parents at religious institutions: Calling it discrimination on the basis of religious status or religious activity
makes no difference: It is unconstitutional all the same.

How that fits in with the Establishment Clause is not clear – oh right, he doesn’t believe it applies to the States.

More 5-4 decisions are likely from this crew

Justice Ginsburg’s Dissent, joined by Justice Kagan

Ginsburg dodges the whole issue by saying once the Montana Supreme Court struck down the entire law – so no one got the money- the case was over. There was no longer a Free Exercise or Establishment Clause issue:

A State may distinguish within a benefit program between secular and sectarian schools, or it may decline to fund all private schools. The Court agrees that the First Amendment permits the latter course. Because that is the path the Montana Supreme Court took in this case, there was no reason for this Court to address the alternative.

Justice Breyer’s Dissent, joined as to Part I by Kagan

Breyer in Part I, discusses the long-standing distaste of the Founding Fathers, particularly Jefferson, and earlier Supreme Courts, of State money going to fund religious education. He says the issue here is not the schools’ status (the basis of Roberts’ opinion) but rather that the parents’ use of the money to fund religious education for their children. For that reason, he says its indistinguishable from Locke:

For our purposes it is enough to say that, among those who gave shape to the young Republic were people, including Madison and Jefferson, who
perceived a grave threat to individual liberty and communal harmony in tax support for the teaching of religious truths. These “historic and substantial” concerns have consistently guided the Court’s application of the Religion Clauses since. If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom.

In Part II, he says the Court’s decision is too broad and sweeping and may have many unintended consequences and leaves a lot of gray area as States will try to increase public money going to religious schools. He says that it is better not to craft a one-size-fits-all approach but rather decide each case on its own facts.

Justice Sotomayor’s Dissent

Sotomayor agrees with Ginsburg that the case was unnecessarily decided since the court below struck down the law in its entirety. But she writes that she felt compelled to write her own opinion because this decision “slights both our precedents and our history” and “weakens this country’s longstanding commitment to a separation of church and state beneficial to

She points out the difference in this case from Trinity Lutheran (though she dissented in that as well):

Although the Establishment Clause permits some government funding of secular functions performed by sectarian organizations the Courts’ decisions provided no precedent for the use of public funds to finance religious activities.”

(Until now, that is)

She then pulls no punches by saying that the majority is wrong to say that the law discriminates against the religious: “A decision to treat entities
differently based on distinctions that the Religion Clauses make relevant does not amount to discrimination.” She finishes with some strong language:

Today’s ruling is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place. We once recognized that while the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs .Today’s Court, by contrast, rejects the Religion Clauses’ balanced values in favor of a new theory of free exercise, and it does so only by setting aside well-established judicial constraints.

What Now?

This decision is a phenomenal victory for Secretary of Education Betsy DeVos who has devoted most of her life to trying to get public funds out of public schools and into the hands of religious schools. I am certain that she will now encourage many other States to follow suit and enact similar programs. That money will now be taken out of public school coffers and will be used by religious teachers to teach religious doctrine to kids. With over 90% of children in the US being educated by public schools that are already financially strapped, this loss of funding will undoubtedly impact public education.

But far more damage has been done to the formally clear line between Church and State. This case will open the floodgates for public funding of religious institutions. One wonders if a challenge to the tax-exempt status of religious schools that receive Federal funding could be raised now. Can private religious institutions have it both ways – get money from the government and not pay taxes?

The case also teaches an important message for litigators and activists alike. Its all about the long game. Large scale wars are won not in one fell swoop, but in small, focused, repetitive battles. Chip away a little here; carve out an exception there; win some key local, then state , then national elections; and then wait for the right case to hit the home run. To be fair, its the way abortion rights and gay rights were won and now parochial schools can eat their cake and have it to.

Moral: Elections matter.

Read the full decision here:

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