Symposium: Clarity in an era of confusion — The Supreme Court will not tolerate hostility to religion

Mithun Mansinghani serves as solicitor general for the state of Oklahoma. Bryan Cleveland and Zach West, assistant solicitors general, also contributed to this article. The state of Oklahoma, through Attorney General Mike Hunter, led an 18-state amicus brief  in support of the petitioners in Espinoza v. Montana Department of Revenue.

On one level, the Supreme Court’s decision in Espinoza v. Montana Department of Revenue is entirely unsurprising—a straightforward application of precedent, both longstanding and recent. At the same time, it introduces something all too rare in recent court decisions and in the field of religious liberty in particular: clarity. Yesterday’s decision articulates an unmistakable rule of law: When the government creates a benefit program, it cannot seek to exclude persons and institutions of faith merely because they are religious.

At issue in Espinoza was a Montana tax credit for donations to scholarship programs assisting students with tuition in private schools. The Montana Supreme Court threw out the tax credit based on the state constitution’s “no-aid” provision or “Blaine Amendment,” which prohibits even indirect aid to “sectarian” schools. Montana’s tax credit program violated this state law, the state court held, because the scholarships were available for use at both religious and nonreligious private schools. In other words, Montana’s neutral and generally applicable program was struck down because a state law required discrimination against religious schools, students and their parents.

Existing U.S. Supreme Court precedent provided ample reason why this decision ran afoul of the First Amendment, but that case law always left some level of ambiguity. In cases like Zelman v. Simmons-Harris, the court upheld state programs that grant parents the financial means to send their children to private schools, even if they choose to send them to religious private schools. Such programs do not violate the First Amendment’s establishment clause. Yet in Locke v. Davey, the court also upheld a state’s decision not to allow state scholarships to fund training for the ministry, but still allowed scholarships for other higher education programs in religious schools. This limited exclusion, the Supreme Court held, was within the “play in the joints” of the First Amendment’s two religion clauses: not so discriminatory that it violated the free exercise clause, and not so directly funding a particular religion that it was mandated by the establishment clause. But how far could the government go in excluding religion from benefit programs without unlawfully discriminating against people of faith?

The Supreme Court cleared this up with its decision in Trinity Lutheran Church of Columbia v. Comer—almost. There, the court invalidated Missouri’s decision, based on its state constitution’s Blaine Amendment, to exclude playgrounds owned by churches from a program that subsidized the resurfacing of playgrounds to make them safer. The court held that the First Amendment “subjects to the strictest scrutiny laws that target the religious for special disabilities based on their religious status,” and “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.” It also scrupulously limited Locke v. Davey’s permission for religious discrimination to the narrow circumstances present in that case: an exclusion for clergy training in a program that otherwise broadly accommodated religion.

 And yet, the opinion also included a footnote saying that Trinity Lutheran only involved “express discrimination based on religious identity with respect to playground resurfacing,” so the Court was not “address[ing] religious uses of funding or other forms of discrimination.” So where did that leave discriminatory programs outside the playground fence?

Trinity Lutheran was also notably silent on the sordid history of state Blaine Amendments. Some justices in prior cases had recognized that these 19^th-century additions to state constitutions were “born of bigotry” and steeped in anti-Catholic animus. Yet a majority of the court had never recognized this historical fact, nor did Trinity Lutheran. Do state Blaine Amendments provide a legitimate reason for governments to jettison religious institutions from government programs?

Espinoza provided definitive answers to these lingering questions, clearing away any doubts about the Supreme Court’s willingness to protect people of faith from discrimination. Government benefit programs cannot categorically exclude religious persons or institutions without facing the First Amendment’s strict scrutiny. This is especially true when the source of a state’s discrimination is a Blaine Amendment, which (for the first time) a majority of the court recognized has “checkered” origins and a “shameful pedigree” of hostility to specific religious groups. And Espinoza confirmed Trinity Lutheran’s limitation of Locke v. Davey to its peculiar facts. Espinoza thus represents one of the more robust defenses of religious liberty to emerge from One First Street, lacking any major caveats or qualifications.

Despite the unmistakable trend in the court’s cases, this was not the inevitable result in this case. Some, like Justice Ruth Bader Ginsburg in dissent, thought that the Montana Supreme Court’s solution—to throw out the whole program for all private schools—fixed any discrimination. But the majority appropriately saw that this would perpetuate, not cure, the unequal treatment of religious people. As the court observed, “the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status.” When confronted with such competing demands of state law and federal law—the former that requires religious discrimination and the latter that prohibits it—the U.S. Constitution’s supremacy clause provides the “rule of decision”: Disregard the state law and follow the federal rule. The “supreme law of the land,” the court wrote, “condemns discrimination against religious schools and the families whose children attend them,” and thus the scholarship program exclusion “cannot stand.”

The opposite conclusion would endorse the very hostility to religion intended by Blaine but forbidden by the First Amendment. It would create systemic discrimination wherein benefit programs are eliminated the moment that a disfavored group (in this case, religious entities) is allowed to participate in them. Under this regime, faith makes one a pariah as a matter of state constitutional law. This is not the vision of pluralism on which the country was founded.

In broadly prohibiting such disfavored treatment of religion, the Supreme Court protected religious exercise beyond just playground resurfacing in Missouri or tax credits in Montana. Most immediately, those students in many states who benefit from scholarship programs for private schools—especially programs put in jeopardy by the looming threat of Blaine Amendments—can now rest easy. Over half a million students participate in school choice programs now protected by Espinoza. Many of these students come from families that are too poor to afford their current school without financial assistance, and some receive much needed support for their special needs from participating in these programs. Under today’s ruling, states can no longer punish any parents for choosing schools that teach the same values that they teach at home.

The clarity given by Espinoza goes beyond school choice. Governments in their many functions must remain neutral toward religious organizations. Faith-based entities participate in many areas of government-sponsored activity, such as social services for the disadvantaged, adoption and healthcare. Any funding to a religious organization could be construed as subsidizing “religious activities,” but treating that organization differently based on that distinction is now clearly subject to the First Amendment’s strictures. So too are the various ways that religious people and groups benefit from government services, from fire and police to antiterrorism grants that help harden and protect houses of worship.

Espinoza is clear as a bell: The free exercise clause’s expansive protection means that neither the establishment clause nor Blaine Amendments can be used to treat people of faith differently or categorically exclude religion from public life.