Earlier this month, the Supreme Court handed down its decision in Espinoza v. Montana Department of Revenue.
By a 5-4 vote, it ruled that the Montana Supreme Court had violated the Free Exercise Clause of the First Amendment when it struck down a Montana scholarship program because that program would have allowed scholarship aid for students attending religious schools in violation of Montana’s “Blaine Amendment” law.
That law — like similar laws in many states dating back to the 1880s — forbids any state aid to religious organizations, and the scholarship program couldn’t satisfy both the Blaine Amendment law in Montana and the Free Exercise Clause in the U.S. Constitution at the same time. So, the Montana Supreme Court threw out the whole program and said that no scholarships were available to anyone.
Chief Justice John Roberts, writing the majority opinion for the U.S. Supreme Court, said the Montana decision ran afoul of the principle that church schools and other religious organizations must be allowed to participate in government grant programs on the same basis as non-religious organizations. In other words, churches are entitled to a level playing field — they can’t be favored (that would violate the Establishment Clause of the First Amendment), but equally they can’t be disfavored for being churches (that would violate the Free Exercise Clause). This principle was most recently laid out in the Court’s 2017 decision in the Trinity Lutheran case, and the Espinoza majority saw no reason to go a different direction. In Court-speak, any government program which treats a religious organization differently from a secular organization is subject to the “strictest scrutiny” and won’t be allowed to stand unless there is a “compelling government interest” justifying the different treatment. No such compelling interest exists to support the Montana court’s decision, so it cannot stand.
The 5-member majority in Espinoza was the Court’s “conservative bloc” (Chief Justice Roberts plus Justices Thomas, Alito, Gorsuch and Kavanagh); the dissenters were the “liberals” (Justices Ginsberg, Breyer, Sotomayor and Kagan). However, the multitude of separate opinions (seven of them!) demonstrates that there’s not a whole lot of common ground to be found within either bloc, and less than clear guidance for churches and governments on what is and is not permitted in this important arena. Click here to get a PDF copy of the Espinoza opinions. In Trinity Lutheran, by contrast, the vote was 7-2 and the ground rules a bit clearer.
So, what should Church Executive readers take away from the Espinoza case? In particular, is there an important development or clarification of a church’s right under Trinity Lutheran to a level playing field? As won’t surprise anyone, the answer is a bit yes and a bit no. Here’s why:
Trinity Lutheran is the bellwether decision by the Supreme Court and stands tall for the proposition that a religious organization is entitled to participate in government grant programs on the same basis as a secular organization. In other words, once a government (federal, state or local) decides to roll out a funding program, it has to give church schools and other religious organizations the same shot at participating as any other organization. Only in an unusual situation (where a “compelling government interest” can be found) will unequal treatment be permitted. Where the Espinoza decision might come in is to clarify a key detail and potential sticking point, as a careful reading of the various opinions in Espinoza suggests that the result might well be different depending on how a religious organization uses or is benefited by the government program. For example, imagine a government scholarship program where two students apply for aid — one to attend college at Notre Dame and one to attend seminary. It seems clear under Espinoza, Trinity Lutheran and earlier Supreme Court decisions that the first student is in luck, and scholarship aid from the government to attend college at Notre Dame could not be denied on the ground that Notre Dame is a Jesuit school. The second student, though, might not be in the same boat, as perhaps scholarship aid could properly be denied to a student wanting to attend seminary on the ground that this would involve the government too closely in religious affairs. That’s an important (if murky) distinction which was flagged in several of the Espinoza opinions in reference to the Supreme Court’s 2004 decision in Locke v. Davey where the Court upheld the limitation in a Washington scholarship program forbidding the use of scholarship aid to pursue “devotional theology degrees, which prepared students for a calling as clergy.”
Bottom line, and reading Espinoza and Trinity Lutheran together (while keeping an eye on Locke), it seems safe to think that the Supreme Court has planted a stake firmly in the ground to guarantee church schools and other church and religious organizations the right to participate in government programs on equal footing with secular organizations where the benefit is used or applied for a non-religious purpose — for example, to make a playground safer or to provide school bus service or to provide police and fire protection. It isn’t enough to claim that, somehow, a benefit to a religious organization is an invalid “establishment” of religion because the organization is benefited, and in this sense it seems clear that Blaine Amendment laws have gone the way of the buggy whip. This is where the “tension” lies between the Establishment Clause and the Free Exercise Clause, as the one prohibits a government from favoring or “establishing” religion while the other prohibits penalizing an organization for being religious and thereby interfering with the “free exercise” of religion. But the tension perhaps gets bent out of shape and a majority of the current Court perhaps would balk at the use of a government grant or benefit for a “religious purpose” — for example, to train ministers or buy hymnals. That’s a decision for another day as the Court works its way through this important discipline.
For now, though, Church Executive and its readers can be encouraged to think the Supreme Court is standing up for a church’s right to be shoulder-to-shoulder with everyone else when government benefits are handed out. That seems only fair when churches are doing more and more for their communities as local and state governments do less and less.
[Kimberlee Norris of the Love & Norris law firm has been our go-to expert for important Supreme Court decisions like Espinoza, and with her help we’ll keep an eye on other cases that might work their way through the pipeline and end up shedding more light on this important area.]
For a more detailed description of the Espinoza decision, including some important nuances and fine tuning, please visit the ScotusBlog posting with Amy Howe’s in-depth analysis of the decision and other resources.
— The Editors