Public Aid Program For Schools Based On Constitutional Provision That Barred Aid For Religious Schools Violated the Establishment Clause When There Was Public Aid For Private Institutions

Espinoza v. Montana Department of Revenue, was clearly one of the most far reaching, controversial  and consequential opinions of the 2019-20 United States Supreme Court term. The question before the United States Supreme Court in Espinoza, was whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from its scholarship program, which allowed public aid for private non-religious institutions.

The Montana Legislature established a program that granted tax credits to those who donate to organizations that award scholarships for private school tuition.  To reconcile the program with a provision of the Montana Constitution that bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, §6(1), the Montana Department of Revenue promulgated “Rule 1,” which prohibited families from using the scholarships at religious schools.  Three mothers who were blocked by Rule 1 from using scholarship funds for their children’s tuition at Stillwater Christian School sued the Department in state court, alleging that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen.  The Montana Supreme Court struck down the program in its entirety relying on the “no-aid” provision of the State Constitution, which prohibited any aid to a school controlled by a “church, sect, or denomination.”  The matter was appealed to the United States Supreme Court.

Chief Justice Roberts, begins his analysis by noting that the Religion Clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  Chief Justice Roberts then cites  an earlier case, Trinity Lutheran Church of Columbia, (a Missouri case), where the Supreme Court recognized that the Establishment Clause was not violated by including churches in a playground resurfacing program). Chief Justice Roberts, noted that Trinity Lutheran, distilled these and other decisions into the “unremarkable” conclusion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposed “a penalty on the free exercise of religion that triggers the most exacting scrutiny.”  Montana’s no-aid provision bars religious schools from public benefits because of the religious character of the schools and parents who wish to send their children to a religious school, from those same benefits, solely because of the religious character of the school.  This is apparent from the plain text of the Montana constitution, which  bars aid to any school “controlled in whole or in part by any church, sect, or denomination,” and that provision is very similar to the Missouri Constitution. 

The result of the application of the Montana constitution was that if you were a religious organization you could not qualify for the grant program making the constitutional violation one of status. As noted above, the Opinion relied heavily on Trinity Lutheran, which interpreted a similar no aid provision in the Missouri Constitution as unconstitutional, while distinguishing Locke v. Davey, where the U. S. Supreme Court held a Washington State scholarship program prohibiting use of public funds to fund the study of devotional theology for a minister was not valid.  The Chief Justice, noted that funding  of a religious program for study of devotional theology for a minister was clearly something the Founding Fathers would not have allowed under the Establishment Clause.  Locke v. Davey,  now seems to be the bright line not to be crossed when considering funding of religious activities.

Espinoza was a 5 to 4 decision, with the traditional conservative liberal split. The dissenters argued that since the Montana Supreme Court invalidated the entire law there was no reason to decide this case because invalidation of the entire aid provision, as the Montana Supreme Court opinion did made the case moot.  This left the result of Epinoza, in the position of seemingly requiring the continued funding, even though the Chief Justice made it clear that there was no constitutional requirement to fund religious education.  This of course leaves open the question of what to do about existing programs and whether or not they can be reduced or discontinued.

The result of Espinoza is good bye, to the Missouri constitutional prohibition against funding religious activities,  except for funding of the education of ministers or something very similar.  From the standpoint of the local government  attorney and public officials life got a lot easier because the rule is so clear.  Anything that hints of hostility towards religious activities or casts the eligibility for a governmental program based on status is suspect and  presumed to be invalid. Some commentators  have suggested it will not be so simple until the parameters are fully explored.  Other areas of the law related to the religious clauses have not yet been divined. Will the Lemon test be impacted? What about restoration of old churches?

Also, the practical effect of this case cannot be ignored.  Government funds are not unlimited and the religious organizations that are able to obtain government money will have a distinct advantage over organizations that don’t have the extra government funding source.  The net result will be that politically powerful and connected religious organizations may have a distinct financial advantage, which results in the government picking winners and losers (think of public education as a potential loser).  

Howard Wright @ 2020

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