Supreme Court Says States Cannot Discriminate Against Religious Schools

The past two weeks of Supreme Court rulings have not been encouraging. After the disastrous ruling in Bostock arbitrarily expanded civil rights protections to include sexual orientation and gender identity, the Court, in June Medical, all but handcuffed meaningful state efforts to restrict abortion.

Finally, yesterday, good news. The Supreme Court, by a 5-4 vote, held its ground on discrimination against religious education. In Espinoza v. Montana Department of Revenue, the Court ruled that a state tax credit which “[discriminates] against religious schools and the families whose children attend or hope to attend them” violates the First Amendment’s Free Exercise Clause.

The case dates back to 2015 when the state of Montana created a dollar-for-dollar tax credit for individuals who donate to organizations that provide scholarships to private school students. After creating the program, the Montana Department of Revenue ruled that such a tax credit, if used to fund to religious private schools, would violate the state’s version of the “Blaine Amendment,” which prohibits state funding of religious education.

Kendra Espinoza, a single mom who works extra jobs in order to send her kids to a Christian school, challenged the Department of Revenue’s ruling in court. In late 2018, the Montana Supreme Court acknowledged that the Department’s ruling probably ran afoul of the U.S. Constitution’s Free Exercise Clause. However, instead of overturning the ruling, it invalidated the entire program.

Thankfully, that didn’t work. 

In his opinion, Chief Justice John Roberts said that “when otherwise eligible recipients are disqualified from a public benefit ‘solely because of their religious character,’ we must apply strict scrutiny.” His statement was a reference to the Trinity Lutheran decision, a case that was successfully argued by the Alliance Defending Freedom in 2017.

“Strict scrutiny” means that the action can only be justified by a “compelling governmental interest.” Montana lacked a “compelling government interest.” Instead, the state argued that the law served “Montana’s interest in separating church and State ‘more fiercely’ than the Federal Constitution.”

Montana’s interest, replied Justice Roberts, is actually “limited by the Free Exercise Clause.” In other words, the Establishment Clause and the Free Exercise Clause cannot be pitted against each other. The separation of church and state cannot be done by discriminating against the church, and religion is not a secondary part of the First Amendment.

And, Roberts continued, the attempt to sweep the Free Exercise problem under the rug by invalidating the whole program doesn’t change what he called Montana’s “error of federal law.” After all, because of the Trinity Lutheran decision, the Montana Court already knew the Department’s ruling was unconstitutional. But, instead of applying the decision as it should have, it invalidated the whole program “to make absolutely sure that religious schools received no aid.” That action in itself violated the Free Exercise Clause, according to Roberts: “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.”

Roberts’ opinion is a resounding repudiation of dozens of “Blaine Amendments” in other states as well. Originally targeted to limit Catholic education, these amendments provide legal cover for treating religious institutions and the people who depend on them as second-class citizens. Roberts made it as clear as possible that they, and we, are not.

Roberts also rejected Justice Breyer’s argument for a “‘flexible, context-specific approach’ that ‘may well vary’ from case to case.” Religious institutions and citizens should not be at the mercy of courts waxing philosophical about the “purposes of the Religion Clauses,” and then applying them on an ad hoc basis. Not to mention, it’s hard to imagine Breyer’s “flexible, context-specific approach” being applied to any other right, such as abortion.

Perhaps the best part of this ruling is that it offers a roadmap for Christians who hope to help people like Kendra Espinoza afford Christian education. The Montana program can serve as a model for other states and could even open the door for other solutions such as vouchers. Educational innovation has long been among the best gifts of Christians to the wider world. This is an open door for us to be even more creative today.

That’s why this decision is such good news. After the earthquakes from the Court the past few weeks, it’s certainly nice to have some solid ground on which to stand.

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