(Guest Post by Jason Bedrick)
The U.S. Supreme Court’s decision today in Espinoza v. Montana finally puts a stake in the heart of the ugly and bigoted legacy of the Blaine Amendments (the history of which Justice Alito details at length in a concurring opinion). It represents a decisive win for families seeking to exercise school choice and for religious liberty.
No doubt this will be a case that launches a thousand op-eds and analyses, but for now I’d like to highlight a few excerpts that get to the core of the issue. If the decision were to be boiled down to its essence, it is this:
“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.”
That’s the whole game. As Chief Justice John Roberts explains at greater length in the majority opinion:
Here too Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. This is apparent from the plain text. The provision bars aid to any school “controlled in whole or in part by any church, sect, or denomination.” […] The provision’s title—“Aid prohibited to sectarian schools”—confirms that the provision singles out schools based on their religious character. […] And the Montana Supreme Court explained that the provision forbids aid to any school that is “sectarian,” “religiously affiliated,” or “controlled in whole or in part by churches.” […] The provision plainly excludes schools from government aid solely be- cause of religious status. [citations omitted]
The chief justice was at pains to explain that the case hinged on discrimination on the basis of “religious status”:
This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no-aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches,” “sectarian schools,” and “religiously-affiliated schools.” […] Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were “religiously affiliated” and “controlled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding “schools controlled by churches.” […] The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations “owned or controlled by a church, sect, or other religious entity.” […]
To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges “inevitably deters or discourages the exercise of First Amendment rights.” […] The Free Exercise Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqualifying the religious from government aid as Montana did here. [citations omitted]
While joining the majority opinion in full, Justice Gorsuch casts a gimlet eye on the “religious status” versus “religious use” distinction (as he did previously in Trinity Lutheran), noting that:
In its very first decision applying the Free Exercise Clause to the States, the Court explained that the First Amendment protects the “freedom to act” as well as the “freedom to believe.”
As Justice Gorsuch explains, the distinction between “religious status” and “religious use” is constitutionally meaningless:
Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.
Bingo. Justice Gorsuch continues:
At the time of the First Amendment’s adoption, the word “exercise” meant (much as it means today) some “[l]abour of the body,” a “[u]se,” as in the “actual application of any thing,” or a “[p]ractice,” as in some “outward performance.” […] By speaking of a right to “free exercise,” rather than a right “of conscience,” an alternative the framers considered and rejected, our Constitution “extended the broader freedom of action to all believers.” […] So whether the Montana Constitution is better described as discriminating against religious status or use makes no difference: It is a violation of the right to free exercise either way, unless the State can show its law serves some compelling and narrowly tailored governmental interest, conditions absent here for reasons the Court thoroughly explains. […]
The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways? What does it mean to tell an Orthodox Jew that she may have her religion but may be targeted for observing her religious calendar? Often, governments lack effective ways to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all. [citations omitted]
In what really should have been the majority decision, Justice Gorsuch concludes:
Montana’s Supreme Court disregarded these foundational principles. Effectively, the court told the state legislature and parents of Montana like Ms. Espinoza: You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public benefit discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.
That, it seems, is a fight for another day.
Regardless, this is a huge win. Advocates for children and religious liberty should be very pleased. Bravo to Dick Komer, Erica Smith, Tim Keller, Michael Bindas, David Hodges, Gretchen Embrey, and all the legal eagles at the Institute for Justice for their landmark victory!
The ugly legacy of Blaine is dead. Long live religious liberty and educational choice!