Espinoza v. Montana Department of Revenue

Supreme Court of the United States
591 U. S. ____ (2020) (2020)

ELI5:

Rule of Law:

A state cannot exclude religious schools from a generally available public benefit program solely because of their religious status. Applying a state constitutional provision to bar otherwise eligible recipients from a public benefit because of their religious character imposes a penalty on the free exercise of religion that triggers and fails strict scrutiny.

Facts:

In 2015, the Montana Legislature enacted a program providing a tax credit of up to $150 to taxpayers who donate to non-profit student scholarship organizations.
These organizations use the donations to grant scholarships to children for tuition at any private school that meets certain state-mandated accreditation, testing, and safety requirements.
Petitioners, including Kendra Espinoza, are mothers who sought to use these scholarships for their children to attend Stillwater Christian School, a private religious school that met all the statutory criteria.
The Montana Department of Revenue promulgated 'Rule 1,' which altered the definition of a qualified school to exclude any institution 'owned or controlled in whole or in part by any church, religious sect, or denomination.'
Rule 1 was created to align the scholarship program with Article X, Section 6 of the Montana Constitution, its 'no-aid' provision, which prohibits public aid to sectarian schools.
Because of Rule 1, Espinoza and other petitioners were blocked from using scholarship funds for tuition at their chosen religious school.

Procedural Posture:

Kendra Espinoza and other parents sued the Montana Department of Revenue in a Montana state trial court.
The trial court enjoined the Department's 'Rule 1,' holding that the state constitution did not prohibit religious schools from participating in the tax-credit scholarship program.
The Department of Revenue appealed this decision to the Montana Supreme Court.
The Montana Supreme Court reversed the trial court, holding that the scholarship program, as enacted by the legislature, violated the 'no-aid' provision of the Montana Constitution by providing aid to religious schools.
As a remedy for this state constitutional violation, the Montana Supreme Court invalidated the entire scholarship program.
The parents (petitioners) sought and were granted a writ of certiorari from the Supreme Court of the United States.

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Issue:

Does the application of the Montana Constitution's 'no-aid' provision to invalidate a generally available tuition-assistance scholarship program, thereby preventing families from using scholarships at religious schools, violate the Free Exercise Clause of the U.S. Constitution?

Opinions:

Majority - Chief Justice Roberts

Yes. Applying Montana's no-aid provision to bar religious schools from a public benefit program violates the Free Exercise Clause. Disqualifying an entity from a public benefit 'solely because of their religious character' constitutes discrimination based on religious status, which triggers the most exacting scrutiny. This case is governed by Trinity Lutheran, where the Court held that excluding a church from a playground resurfacing grant based on its religious status was unconstitutional. It is distinct from Locke v. Davey, which involved a state's refusal to fund a narrow 'essentially religious endeavor'—the training of clergy—not a blanket exclusion of an institution based on its religious identity. A state’s interest in achieving a greater separation of church and state than is already ensured by the federal Establishment Clause is not a compelling interest that can justify an infringement of free exercise rights. The Montana Supreme Court's remedy of invalidating the entire program does not cure the constitutional violation, as the program's elimination flowed directly from the unconstitutional application of the no-aid provision.

Concurring - Justice Thomas

Yes. This case is correctly decided, but the Court's Establishment Clause jurisprudence remains flawed and continues to hamper free exercise rights. The modern understanding of the Establishment Clause as requiring strict neutrality between religion and non-religion is unmoored from its original meaning, which was only to prevent the federal government from establishing a religion and should not be incorporated against the states. This erroneous view allows governments to justify discrimination against religion under the guise of avoiding an 'establishment,' as occurred in Locke v. Davey. Returning the Establishment Clause to its proper, narrower scope is necessary to fully protect free exercise rights.

Concurring - Justice Alito

Yes. The majority is correct, and it is important to recognize the historical context of Montana's no-aid provision. This provision, like similar 'Blaine Amendments' in many other states, was modeled on a failed 19th-century federal constitutional amendment prompted by virulent anti-Catholic prejudice. Under the Court's recent precedent in Ramos v. Louisiana, which considered the discriminatory origins of a state law, this bigoted history is relevant to the constitutional analysis. The subsequent readoption of Montana's provision in 1972 did not cleanse it of this discriminatory taint, and its application here to deny aid to parents choosing religious schools has its originally intended effect.

Concurring - Justice Gorsuch

Yes. The Court correctly finds a Free Exercise Clause violation, but the distinction between discrimination based on 'religious status' and 'religious use' is unstable and unnecessary. The Free Exercise Clause protects not just the right to be religious (status) but also the right to act on one's beliefs publicly (use/conduct), such as by educating one's children in a religious school. Whether Montana's law is characterized as targeting the religious status of the school or the religious use of the funds, it discriminates against the free exercise of religion and must be subjected to strict scrutiny, which it fails.

Dissenting - Justice Ginsburg

No. The Montana Supreme Court's decision does not violate the Free Exercise Clause because it does not involve the essential component of differential treatment. By striking down the scholarship program in its entirety, the state court's judgment treats secular and sectarian schools alike; neither is eligible for benefits. Petitioners are not put to a choice between their faith and a government benefit because the benefit no longer exists for anyone. The majority decides a hypothetical question not presented by the actual judgment below, which put all private school parents in the same boat.

Dissenting - Justice Breyer

No. The majority's rigid application of strict scrutiny ignores the necessary 'play in the joints' that must exist between the Establishment and Free Exercise Clauses. This case is more analogous to Locke v. Davey, as it involves a state's choice not to fund 'an essentially religious endeavor'—namely, religious instruction and inculcation. A state's decision not to fund religious education is supported by a 'historic and substantial' interest in avoiding religious strife and taxpayer entanglement with religion. The majority's holding collapses the space between what the Establishment Clause permits and what the Free Exercise Clause compels, risking the very conflict the Religion Clauses were designed to prevent.

Dissenting - Justice Sotomayor

No. The Court lacks jurisdiction and should not have decided this case. The Montana Supreme Court's decision rests on an adequate and independent state law ground: it invalidated the entire scholarship program under the Montana Constitution. Because the program no longer exists for anyone, petitioners suffer no injury from religious discrimination, and there is no live controversy for the Court to resolve under Article III. The majority improperly transforms an as-applied challenge into a facial one and issues an advisory opinion. On the merits, the decision wrongly departs from precedent that allows states to avoid funding religious instruction to protect the values of both Religion Clauses.

Analysis:

This decision significantly expands the holding of Trinity Lutheran, moving from a prohibition on status-based discrimination for secular benefits (like playground resurfacing) to the core area of religious education. It severely curtails the ability of states to enforce their own 'no-aid' or 'Blaine' amendments, which are often stricter than the federal Establishment Clause, to exclude religious institutions from school choice programs. The ruling establishes a strong presumption that if a state offers a public benefit to private secular organizations, it cannot deny that same benefit to religious ones, setting the stage for future challenges to a wide range of state laws that distinguish between religious and secular entities.

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