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Cardinal Donald Wuerl, Archbishop of Washington, speaks with Chief Justice John Roberts as they leave the Cathedral of St. Matthew the Apostle in Washington, DC, in 2015. | Katherine Frey/Washington Post/Getty Images

Chief Justice Roberts just gave us a reminder that he’s still a conservative Republican.

The Supreme Court’s 5-4 decision in Espinoza v. Montana Department of Revenue, as Justice Sonia Sotomayor writes in dissent, “weakens this country’s longstanding commitment to a separation of church and state.” Yet Chief Justice John Roberts’ majority opinion, which held that Montana may not exclude religious institutions from a program that provides scholarships to private schools, also reads like the next incremental step in a line of cases permitting the government to fund religious education.

As Roberts argues in his opinion, the result in Espinoza flows from the Court’s previous decision in Trinity Lutheran Church v. Comer (2017), which held that the state of Missouri could not exclude religious organizations from a state program that offered “grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.”

But the Montana program at the heart of Espinoza involves something far more profound and important than recycled tires: Montana’s effort to subsidize private schools. The state provides a $150 tax credit to state taxpayers who donate to a scholarship program that pays the tuition of private school students. Espinoza asks whether the state is required to include religious schools in this program.

Writing for himself and the Court’s other four Republicans, Roberts answers this question in the affirmative. “A State need not subsidize private education,” he writes. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

This is a more moderate position than the Institute for Justice, a libertarian law firm that represented the plaintiffs in Espinoza, took in its brief. That brief seemed to suggest that the Constitution requires states to fund private religious education as an alternative to public school. (Richard Komer, the lawyer who argued the case, appeared to abandon that view at oral argument.)

Nevertheless, the implications of Espinoza could be profound, because private schools often will not have the same safeguards against discrimination as public schools. According to Greg Lipper, a lawyer who represented several disability rights groups that filed a brief in Espinoza, “federal disability laws barely protect children who attend private schools and religious schools” and “many of these schools refuse to admit children with disabilities, otherwise discriminate against these children, or fail to provide these children with the services they need.” Other religious schools may even teach that certain individuals, such as LGBTQ students, are worthy of condemnation.

Espinoza, in other words, is likely to lead to more children being educated in institutions that engage in discrimination.

Espinoza involves a difficult balancing act between two constitutional provisions

The First Amendment places two limits on the government’s interaction with religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (although the First Amendment speaks of “Congress,” the 14th Amendment makes its provisions applicable to the states).

Thus, the First Amendment’s Establishment Clause limits the government’s ability to advance religion, and the Free Exercise Clause limits the government’s ability to target people of faith. The government is simultaneously obligated both to stay out of religious matters and to protect the rights of the faithful — a dual obligation that courts have often found difficult to reconcile.

“The Court has struggled to find a neutral course between the two Religion Clauses,” the Supreme Court admitted nearly half a century ago. Both clauses are “cast in absolute terms,” and both of them, “if expanded to a logical extreme, would tend to clash with the other.”

Montana tried to resolve this tension by enacting unusually strong protections against state funding of religion. A provision of the Montana Constitution, which was enacted in 1972, provides that the state “shall not make any direct or indirect appropriation or payment from any public fund or monies” to churches or other religious institutions.

Because of this provision, the state Supreme Court struck down the entire private school scholarship program, arguing that it violates the state constitution by funding religious schools.

Espinoza, however, concludes that this state court decision was wrong. Rather than strike down the subsidies for religious schools, Roberts writes, the state court should have held that it is unconstitutional to exclude religious schools from a program that subsidizes state schools.

In reaching this conclusion, Roberts relies heavily on Trinity Lutheran, the recycled tires case. According to Roberts, Trinity Lutheran reached the “‘unremarkable’ conclusion that disqualifying otherwise eligible recipients from a public benefit ‘solely because of their religious character’ imposes ‘a penalty on the free exercise of religion that triggers the most exacting scrutiny.’”

Just as the Missouri recycled tires program “discriminated against the Church ‘simply because of what it is—a church,’” the Montana constitution “bars religious schools from public benefits solely because of the religious character of the schools.”

It’s a strong argument. Once you accept the legitimacy of Trinity Lutheran’s holding that religious organizations must be included in one state-run program, it seems to follow that similar organizations cannot be excluded from other programs.

Less than two decades ago, many justices argued that the Establishment Clause prohibits the government from funding religious schools. But that ship has sailed. Under today’s precedents, the strongest argument against Roberts’ position flows from Locke v. Davey (2004), which held that the state of Washington may exclude students who wish to study “devotional theology” from a state-run college scholarship program. As Locke explained, “procuring taxpayer funds to support church leaders” is “one of the hallmarks of an ‘established’ religion.”

Justice Stephen Breyer argues in dissent that Locke should also apply to the private school subsidies at issue in Espinoza because “‘the shaping, through primary education, of the next generation’s minds and spirits’ may be as critical as training for the ministry” as a formal college education in devotional theology. But Roberts offers a strong rejoinder to this argument.

The scholarship program in Locke, Roberts points out, “allowed scholarships to be used at ‘pervasively religious schools’ that incorporated religious instruction throughout their classes.” Thus, Locke can be read, not to permit the government to deny funding to religious schools altogether, but merely to permit the government to deny scholarships for students undergoing special training to become religious leaders.

Espinoza, in other words, is less of a radical leap rightward than it is the next step in a process conservative justices have supported for many years — and that they have bolstered with decisions like Trinity Lutheran. The question now is how far this project will go.

The Supreme Court could soon hold that religious schools have a right to discriminate even if they receive government subsidies

The Supreme Court established in Christian Legal Society v. Martinez (2010) that the government may refuse to subsidize organizations that exclude certain individuals — even if that discrimination is motivated by religious faith. But Martinez was a 5-4 decision, and one of the justices in the majority, Justice Anthony Kennedy, has since been replaced by the much more conservative Justice Brett Kavanaugh. So it is far from clear that the current Supreme Court will allow the government to deny subsidies to anti-LGBTQ schools, or to other religious organizations that discriminate.

Next fall, the Supreme Court will hear Fulton v. City of Philadelphia, a case asking whether government contractors have a constitutional right to engage in LGBTQ discrimination.

The plaintiffs in Fulton include Catholic Social Services (CSS), an organization that used to contract with the city to help find foster placements for children but that effectively lost that contract after it refused to comply with the city’s ban on discrimination against same-sex couples. CSS claims it has a First Amendment right to continue to do business with the city even if it refuses to comply with the city’s anti-discrimination rules.

Should CSS prevail in Fulton, that would be a legal earthquake, effectively permitting religious organizations to take money from the government even as they refuse to comply with anti-discrimination rules. And it could have equally profound implications in the wake of Espinoza.

The government could effectively lose its ability to tell schools that discriminate against LGBTQ students, students with disabilities, or other marginalized groups that they may not participate in state-run scholarship programs.

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Author: Ian Millhiser

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