Wednesday Writs: Espinoza v. Montana Department of Revenue

The Supreme Court’s anxiously awaited abortion rights decision in June Medical Services v. Russo was released this week. It’s here if you want to read it. Or, you could read this case from 2015 in which the Court ruled the very same way on the very same issue. In any event, I’m not going to get into the details because I don’t hate myself quite that much.

Instead, let’s discuss something less controversial, like religious freedom, via another new decision fresh off the SCOTUS presses.

Wait a sec… this one has seven separate opinions? The abortion case only had five.

Fine. For you, my beloved dozen or so faithful readers of Wednesday Writs, I will.

The case involves a Montana school choice statute which provided tuition assistance to parents to send their children to private schools. The law provided tax credits to organizations who then provided scholarships. Rule 1, promulgated after the law’s passage, prohibited the use of the scholarship funds for religious schools, in accordance with the so-called “no aid” provision of the Montana state constitution which does not allow state money to directly or indirectly support a church based or controlled school. Three parents who tried or planned to use the scholarships to send their children to Stillwater Christian School filed suit in 2015, alleging religious discrimination.

The trial court issued an injunction against the application of Rule 1, interpreting the “no aid” provision to refer to appropriations to religious schools, not tax credits that might benefit them indirectly. Over the next two years, scores of families used the scholarships to send their children to Stillwater. But in 2018, the Montana Supreme Court reversed the trial court, agreeing with the state’s interpretation of the constitutional “no aid” provision. The Court made no finding as to the freedom of religion issue, but found the school choice program in violation of the no aid provision and thus invalid under the state constitution, ending the scholarship program. Several of the state’s justices wrote separate opinions, with two dissenting entirely. The division was a harbinger of things to come when the families appealed to the US Supreme Court.

The opinion of the Court in this, our Case of The Week, Espinoza v. Montana Department of Revenue was delivered by Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Roberts begins by recognizing the interplay between the establishment clause and the free exercise clause of the First Amendment, which sometimes seem to run afoul of one another. But he notes that all parties to the case are in agreement that the Establishment Clause was not violated by the statute; a law which is neutral on its face but which benefits a religious institution is not a violation of the separation of church and state. “Any Establishment Clause objection to the scholarship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools,” writes Roberts. Nevertheless, the State asserted that the program was at odds with Montana’s own constitution.  For the purposes of analysis, the Court accepted the state court’s interpretation of its law and constitutional provision, and then endeavored to decide whether that law and provision violate the Free Exercise clause of the federal constitution.

Quoting Trinity Lutheran Church v. Comer, in which a church-run daycare center was denied a grant for playground improvements because it was a church, Roberts states that “The Free Exercise Clause… ‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status.'” The state argued that Trinity did not apply here, because the school choice funds here would be used “for religious education”, in contrast to a non-religious benefit like a playground. The Court was not persuaded, finding that the statute discriminated on the basis of religion, requiring the school to “divorce itself” from its religious affiliation to participate in the program.

The state asked the Court to apply its holding in another case, Locke v. Davy from 2004. In Locke, a man was denied a state-sponsored scholarship on the grounds that he intended to use it to study to become a member of the clergy. The Court held that the use of state funds to pursue the “essentially religious endeavor” of training to be a minister was unconstitutional. The Roberts Court does not find Locke analogous to the instant case, finding the funds are not for the support of “essentially religious” instruction. Further, the Court found, because Montana’s constitution broadly prohibits the funding of schools run by religious organizations rather than narrowly prohibiting state support of a religious course of study, it is overly broad.

While the Court recognized an “historic and substantial” tradition of not using government funds to support clergy, it found no such tradition as to the funding, broadly, of religious schools in general, citing historic practices of states doing just that. The state argued that the “tradition” of not giving public money to religious schools developed in the post-civil war era, but the Court was not persuaded, pointing out that even though many states added “no-aid” provisions to their constitutions around this time, it was driven by anti-Catholic sentiment.

This type of facially discriminatory provision is subject to the high standard of strict scrutiny: “government action ‘must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.'” The interest Montana claimed to be advancing was a more stringent separation of church and state than that which exists in the US Constitution. But the Court responded that such interest can not advance further than the Free Exercise clause would permit. They were likewise unpersuaded by the state’s insistence that the “no aid” clause actually advanced religious freedom by ensuring taxpayers that their money is not used to support any religion.

The state then argues, ironically, that the “no aid” provision advances the interest of public education by keeping money from flowing to private schools. But the fact that only religious schools bear the brunt of this goal makes the argument easily swatted away. Writes 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.”

Finally, the state contends that none of this matters; the Montana Supreme Court put an end to the scholarship program with its ruling, putting all private schools on the same footing. However, because the lower court’s decision “flowed directly from the Montana Supreme Court’s failure” from the very beginning “to follow the dictates of federal law” regarding the free exercise of religion, the majority held that the ruling was reversed, and the matter remanded for reconsideration under the applicable federal law.

Justice Thomas, joined by Gorsuch, wrote a concurrence, echoing the majority’s sentiment that the Montana constitution’s “no aid” provision violates the First Amendment. However, says Thomas, “I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face
needless obstacles in their attempts to vindicate their religious freedom.”

Thomas disagrees with the “modern” interpretation of the Establishment Clause, which “prohibits the government from expressing any preference for religion—or even permitting any signs of religion in the governmental realm.” Thomas believes the purpose of the Establishment Clause is to prevent the federal government from establishing and imposing upon citizens a church. Therefore, he does not believe that the Establishment Clause is imparted to the states. Quoting himself quoting Scalia:

Even assuming that the Clause creates a right and that such a right could be incorporated,
however, it would only protect against an “establishment” of religion as understood at the founding, i.e., “‘coercion of religious orthodoxy and of financial support by force of law
and threat of penalty.’”

It is perfectly acceptable for a state to “favor” a religion, according to Thomas, so long as no one is forced to participate or penalized if they do not. He finds that the Court’s jurisprudence has so expanded the intent of the Establishment Clause that it “cramps” the Free Exercise Clause.

Alito writes solely for himself, adopting the majority decision in full, but adding a discussion of the origin of Montana’s “no aid” provision. Alito takes the opportunity to refer to his dissent in Ramos v Louisiana , in which he lamented the majority’s rejection of precedent that allowed non-unanimous jury verdicts in serious criminal cases. The majority opinion in Ramos discussed the racist origins of the non-unanimous verdict rule, particularly the role of the Ku Klux Klan in its development. His dissent argued that the origin of the law was irrelevant to its constitutionality. “But I lost,” he writes, “and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here.” He then dives into the anti-Catholic origins of “no-aid” provisions like the one at issue, apparently for the purpose of calling out some of the dissents in this case. (It is an interesting history lesson of the failed Blaine Amendment and anti-papist sentiment, if you have the time and inclination to read it. It begins on page 35 of the linked Espinoza decision.)

Justice Gorsuch also wrote a solo concurrence, though he, too, joins the majority in full. He writes to express his disagreement with the idea that the discrimination at the heart of the case is based on religious status. Rather, he believes it to be based on the practice of religion.

Does Montana seek to prevent religious parents and schools from participating in a public benefits program (status)? Or does the State aim to bar public benefits from being employed to support religious education (use)? Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion.

In the end, though, he concedes that it does not matter: “It is unconstitutional all the same.”

Justice Ginsburg penned a dissent, joined by Justice Kagan. She notes that the plaintiff’s parents do not challenge the validity of the “no aid” provision itself, only the state court’s application of the provision to the scholarship program. Because the Montana Supreme Court struck down the scholarship program as violative of the state constitution, leaving both religious and non-religious schools equally bereft of the funding it would have provided, Ginsburg finds no constitutional issue. She argues that the state court decision did not hamper anyone’s freedom to exercise their religion or prohibit them from sending their children to a religious school. She emphasizes that it is not the Montana constitution under consideration, but the state’s Supreme Court’s decision- which left both religious and non-religious schools in the same position.

Justice Breyer wrote a dissent as well, which Justice Kagan joined in part. He expressed concern that the majority’s decision might cause future confusion between the Establishment Clause and the Free Exercise Clause if it “forbids a State to draw any distinction between secular and religious uses of government aid to private schools that is not required by the Establishment Clause.” Breyer says that people should be free to exercise their religion both “without sponsorship and without interference.”

Breyer finds the case at bar to be more like Locke than Trinity, because in his view, the activity being funded here and in Locke involves a religious endeavor; Trinity involved a decidedly non-religious activity of renovating a playground. Indeed, the petitioners here admit that they want to send their kids to a school that will impart their religious values to their children. The purpose of the schooling is not purely a secular education.

‘If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom.”

Justice Sotomayor’s solo dissent begins by chastising the Court for framing the question presented as determining the validity of the “no aid” provision of Montana’s constitution under the Free Exercise Clause, because in her view, that was not the issue brought by the parties. The Court violates Article Three, she writes, by deciding a federal question not presented and which cannot affect a state court judgment (which it cannot do here, since the state court judgement did not include a determination on the propriety of the “no aid” provision.)

Sotomayor writes that the plaintiffs here have no cognizable free exercise claim because the program in which they wish to participate no longer exists, having been abolished as against state law by the state supreme court. “Short of ordering Montana to create a religious subsidy that Montana law does not permit, there is nothing for the Court to do.” Further, opines Sotomayor:

“Having held that petitioners may not be “exclu[ded] from the scholarship program” that no
longer exists, the Court remands to the Montana Supreme Court for “further proceedings not inconsistent with this opinion.” But it is hard to tell what this Court wishes the state court to do. There is no program from which petitioners are currently “exclu[ded],” so must the
Montana Supreme Court order the State to recreate one? Has this Court just announced its authority to require a state court to order a state legislature to fund religious exercise, overruling centuries of contrary precedent and historical practice?”

Calling the decision perverse, she concludes that “[w]hile the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs.”

[WW2]
Also from SCOTUS this week, the current structure of the Consumer Financial Protection Bureau unconstitutionally infringes on the separation of powers. The 5-4 decision, also penned by Chief Justice Roberts and which makes the head of the bureau fireable at will by the executive, was split along ideological lines.

[WW3]
You probably heard about the gun wielding lawyer couple defending their St. Louis mansion from protesters the other day. But have you met their lawyer?

[WW4]
In California this week, 74 year old Joseph DeAngelo admitted to being the serial murdering rapist also known as the Golden State Killer, The East Area Rapist, the Original Night Stalker, and the Visalia Ransacker.

[WW5]
Prospective lawyers trying to lawyer their way into being lawyers without passing the bar. Figures. But with the Coronavirus pandemic they might have more of a point than usual.

[WW6]
Not a great CV item on the lawyer resume: “He was a Princeton-educated corporate lawyer. She provided legal services for the poor. Now they are accused in a Molotov cocktail attack on a police car.”

[WW7]
Well…that’s disconcerting: “Thousands of U.S. judges who broke laws or oaths remained on the bench”