Symposium: What “play in the joints” remains after Espinoza?

Grant T. Sullivan is an assistant solicitor general with the Colorado Attorney General’s office, which filed an amicus brief on behalf of nine states in support of respondents in Espinoza v. Montana Department of Revenue. The views expressed in this post are solely those of the author and should not be imputed in whole or in part to any other state or state official unless expressly endorsed by an authorized representative of the state.

For state policymakers, crafting sound (and constitutional) education funding policies that support some level of parental choice at private schools—whether religious or secular—has always been challenging. Take too heavy a hand in providing state funds to religious schools and the state may encroach on the establishment clause. But fail to treat religious schools similarly in the state’s funding programs and the state may run afoul of the free exercise clause.

This tension has long been recognized in the Supreme Court’s decisions addressing the interplay between the competing religion clauses. To counteract that tension, the court has historically granted some deference to state decisionmakers in striking this delicate balance. States are afforded “play in the joints,” the court has explained, between the establishment clause’s and the free exercise clause’s competing principles.

The Supreme Court, however, significantly narrowed that “play in the joints” this week in Espinoza v. Montana Department of Revenue. In a 5-4 decision, the court held that that the Montana Supreme Court violated the free exercise clause when it invalidated a state tax credit program that provided scholarships to students attending both private religious schools and private secular schools. Adhering closely to the distinction drawn in Trinity Lutheran Church of Columbia, Inc. v. Comer between religious status and religious use of public funds, the court found that the Montana court had invoked the state’s no-aid provision in its state constitution to improperly exclude religious schools from the scholarship program solely because of their religious status.

The court was unconvinced by Montana’s argument under Locke v. Davey that the scholarship funds were denied because of the religious use they would be put to. Locke was distinguishable, the majority explained, because the Montana Supreme Court applied its no-aid provision “solely by reference to religious status.” Applying strict scrutiny, the court concluded that Montana had not advanced sufficiently compelling and narrowly tailored state interests that might otherwise justify its free exercise violation.

It was of no consequence, in the majority’s view, that the lower court’s judgment eliminated the scholarship program in its entirety, removing any differential treatment between religious and secular schools. Instead, when the Montana court was called upon to apply the state’s no-aid provision to exclude religious schools from the program, the federal Constitution obligated the state court to “reject the invitation.” The Montana court’s wholesale elimination of the scholarship program “flowed directly” from its failure to follow federal law, requiring reversal.

Although the Espinoza majority garnered five votes, six justices wrote separately. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch each penned concurring opinions expressing varying levels of disagreement with the court’s free exercise jurisprudence, while Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor authored dissents. By any measure, the Supreme Court is deeply divided over how the competing religion clauses might apply to other state funding structures, leaving state policymakers with only the thinnest of guidance. Indeed, by narrowing the play in the joints between the two religion clauses, the Espinoza decision has the potential to create more questions than answers.

Take, for example, the problem of state entanglement with religion—a central feature of the Supreme Court’s precedent under the religion clauses, including its controversial Lemon test. Montana defended the Montana court’s decision, in part, on the ground that its no-aid provision protected religious liberty by guarding against state entanglement in religious affairs. The Espinoza majority was unpersuaded, finding no historic and substantial tradition against state support for religious schools. To the contrary, according to the majority opinion, early state laws “actively encouraged” government support of religious schools. And Montana’s interest in separating church and state “more fiercely” than required by the federal Constitution was not sufficiently compelling in the face of the state’s free exercise violation.

Left unresolved, however, is whether and when a state’s desire to avoid excessive religious entanglement going forward serves as a legitimate ground on which to design a school funding policy. The Espinoza majority did not explain how its decision impacts the Lemon test or otherwise respond to the dissenters’ entanglement concerns. But current state programs that rely on similar anti-entanglement justifications could face challenges in light of the Supreme Court’s silence. States may well face increased litigation in the years ahead and state policymakers, unsure how much flexibility they retain, may feel constrained when attempting to devise creative funding compromises that are politically palatable, financially feasible and responsive to diverse local needs.

Relatedly, the court’s opinion creates uncertainty regarding the degree to which a state may continue to rely on Locke to deny taxpayer funds for religious uses by schools. In Locke, the Supreme Court upheld Washington’s decision denying a taxpayer-funded scholarship for a would-be minister to pursue a theology degree. In Chief Justice William Rehnquist’s majority opinion, the court explained that the states’ respective constitutions “embody distinct views” on religion and the states act lawfully when they “deal differently with religious education for the ministry” than with education on other topics.

This reasoning would seem to apply equally in Espinoza. The parents admitted that a “major reason” motivating their use of the scholarship funds was their wish to send their children to a school that “teaches the same Christian values” that they teach at home. But unlike Locke, the Espinoza majority did not focus on this admitted religious use of taxpayer funds. Rather, it homed in on the Montana court’s description of its no-aid provision, which disqualified schools based on their religious status, regardless of their use of public funds. Thus, Locke’s continuing vitality may now turn on how a future court interprets and applies the state’s no-aid provision in a given case—cold comfort to a state legislator seeking predictability and certainty when negotiating an education funding package with her legislative colleagues.

The court’s opinion also leaves unresolved the amount of flexibility that states have to cease or alter existing state aid to religious schools. The court emphasized that a state “need not subsidize private education,” but once it does so it “cannot disqualify some private schools solely because they are religious.” Recall, however, that the Montana Supreme Court ended the scholarship program in its entirety. Under its decision, all private schools—secular and religious alike—were no longer eligible to receive taxpayer-funded scholarships. The Supreme Court disregarded that state outcome, even though the Montana court’s judgment demanded no differential treatment between secular and religious schools. Instead, the Supreme Court held that once the legislature enacts and the governor signs a limited scholarship program, the Constitution requires that the program be expanded to all private schools rather than, as the Montana court determined, ended because of its incompatibility with other state provisions.

This raises the question: How can a state like Montana get out of the business of funding private schools altogether without drawing free exercise scrutiny? What if, as often happens, a state legislature offers a mix of reasons for its withdrawal of aid, with most legislators basing their decision on budgetary constraints but a few relying on a modern no-aid provision like Montana’s? Does the state violate the free exercise clause then?

Perhaps the majority’s use of “solely” will provide states a safe harbor. But under its decision,  a future plaintiff may plausibly argue that a state’s guarantee of equal treatment among private religious and secular schools is no longer adequate, particularly if the state’s funding decision is interwoven even slightly with policies animated by a no-aid provision. This concern is especially acute now. The COVID-19 pandemic and the economic downturn that it has precipitated have sent state budgets into a tailspin. States facing increasing budget shortfalls that need to make painful but necessary cuts to education will have to navigate these difficult, unanswered questions with utmost care.

At bottom, one thing is clear from Espinoza—the Supreme Court’s expansion of the free exercise clause in the area of school funding reduces the range of options available to state policymakers to meet their residents’ unique education needs. As a result, states are given less room to innovate and to develop state-specific solutions that respond to local needs. But precisely how much, if any, “play in the joints” remains will have to await a future case.