Critical church-state separation issues at play in the Supreme Court

By Kimberlee Norris, attorney at law 

The Supreme Court recently heard oral arguments in the Espinoza v. Montana Department of Revenue case, wherein several parents are challenging a state court decision canceling a tuition subsidy program because it could be used to help send kids to church-affiliated private schools.

As we noted last year when the case was briefed (including a snowstorm of “friend-of-court” briefs), the Supreme Court’s decision in Espinoza could be very important for churches if the Court takes up the opportunity to clarify or modify its landmark Trinity Lutheran decision in 2017. And with a new Justice weighing in — Justice Kavanaugh is now on the Court, replacing Justice Kennedy — it seems likely that Espinoza will add something important to the mix.

The thrust of the Trinity Lutheran 7-2 decision was that a government program must be even-handed and allow churches to participate in the program alongside non-churches. In that case, Missouri provided subsidies to help make private playgrounds safer for kids, and the Supreme Court said that the U.S. Constitution requires the Missouri program to allow a church-affiliated pre-school/daycare center to participate in the program on the same basis as any other nonprofit. The government can’t favor churches, as that would be an “establishment” of religion in violation of the Establishment Clause of the First Amendment; equally, though, the government can’t be hostile or less favorable to churches, as that would be contrary to the Free Exercise Clause of the First Amendment. In other words, a federal, state or municipal program has to be neutral and even-handed — it can’t be any more or less accommodating in its application as between churches and non-churches.

“As churches continue to play an increasingly significant role in their communities by providing services left unmet by cash-strapped local governments, Espinoza could turn out to be an important decision.”

Needless to say, there is a difficult gray area created by this tension between the Establishment Clause and the Free Exercise Clause, and probably the Supreme Court decided to hear the Espinoza case to start the process of dealing with some of the gray area. For example, a government program designed to help private schools purchase text books would be available for chemistry class, but course materials for Bible study would likely be a different matter. As well, a government program for tuition subsidies would not likely be available to help with seminary tuition. Perhaps the Montana program fell in this gray area, at least for some of the Justices?

The Espinoza case has legal technicalities which could end up leading to a “non-merits decision” by the Court — i.e., a decision which does not reach the First Amendment issues at all, or which skews the decision such that it is not helpful in understanding how to handle the gray areas. In particular, some of the Justices (including the two Trinity Lutheran dissenters) questioned during oral argument whether there is any case left to decide, since the Montana court cancelled the entire program, meaning that no subsidies were available for any parents or schools, religious or otherwise. And questions were raised about whether these parents have “standing” to litigate here, as distinct from the schools and taxpayers directly affected by the program’s cancellation.

No one can fully predict the Supreme Court’s decision, and whether it will add to recent caselaw giving churches a level playing field and the same opportunities to participate in government programs, comparable to non-religious organizations. As churches continue to play an increasingly significant role in their communities by providing services left unmet by cash-strapped local governments, Espinoza could turn out to be an important decision. Church Executive will report back to our readers when the decision gets handed down, likely not until late June, unless the Court punts on one or more of the technicalities.


Kimberlee Norris is a partner in the Fort Worth, Texas law firm of Love & Norris and co-founder of MinistrySafe, providing child sexual abuse expertise to ministries worldwide.


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