The Umpire-in-Chief and the Religion Clauses: Will he Make the Right Call in Espinoza v. Montana Dep't of Revenue

By Eric Segall

From 1988-1991, while at the Department of Justice, I litigated on behalf of the United States Department of Education a church/state case in San Francisco in which a public interest group challenged federal aid to private religious schools. I worked closely with experienced lawyers representing the United States Catholic Conference and the Archdiocese of  San Francisco. Their position, and ours, was that the federal program was constitutional under relevant Court cases involving what the government could and could not provide to parochial schools. No one, and I mean no one, thought for one second that, by giving aid to not-for-profit private secular schools, the federal government would be constitutionally obligated under the free exercise clause to provide the same aid to religious schools. Quite simply, no one thought that.

Sometime in the next month, the Court is going to decide Espinoza v. Montana Dep't of Revenue. This case should be a one-day blip with no lasting significance, but it could end up invalidating the laws of 38 states and the local education financing schemes of almost 20 states. That result would be a disaster for federalism, education, the separation of church and state, and the country.
Montana has a state constitutional provision that provides that state and local governments cannot “make any direct or indirect appropriation or payment from any public fund or monies … for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination,” subject to an exception for “funds from federal sources provided to the state for the express purpose of distribution to non-public education.” This provision is similar to "no-aid" constitutional rules in 37 other states. Some of these constitutional provisions were enacted because of anti-Catholic bias in the late 19th century but many, like Montana's, were renewed much later without such bias playing any role in the re-authorizations.

In 2015, Montana enacted a program whereby taxpayers would get a tax credit for donating to a state-recognized scholarship fund that would defray the costs of private schools for parent of children attending those schools. Once the money was donated, however, the taxpayer had no say in where the money went. Before the program went into effect, the Montana Department of Revenue issued Rule No. 1 which, consistent with the state constitution, said none of the money could go to religious schools. A state court, however, enjoined that rule, and it never went into effect.

It is undisputed that there are only secular private schools and Christian private schools in Montana. In 2018, 13 schools received the money, of which 12 were Christian and the 13th was a school for disabled students. Subsequently, the Montana supreme court ruled that the program as implemented violated the state constitution and further held the program had to be discontinued in its entirety. The court pointedly refused "to address federal precedent," deciding solely on state law grounds. Thus, the challenged program does not exist anymore for exclusively state law reasons.

The plaintiffs in Espinoza are not the schools denied the money but parents of children who say the schools their children want to attend would be cheaper if the program existed. Their legal argument is that the no-aid provision of the Montana constitution violates the federal free exercise clause, and thus the Montana supreme court erred by relying on that state provision to end the scholarship program.

The specific issue in the case is whether states are obligated to fund religious schools if they fund non-religious schools. Almost 20 states currently have programs that provide some support to private secular schools but no support to religious schools. The much broader issue is whether the 38 states that have constitutional provisions prohibiting any taxpayer money going to religious institutions violate the free exercise clause.

There are two Supreme Court cases directly relevant to those questions. In Locke v. Davey, the Court, by a 7-2 vote, upheld a Washington scholarship program that excluded students pursuing "devotional theology degrees." Washington has a "no-aid" constitutional provision forbidding tax dollars going even indirectly to religious institutions. The Court held that although it would not violate the establishment clause for the state to provide funds for such students, it did not contravene the free exercise clause for Washington to decide not to do so. There was "room in the joints" between the two clauses allowing Washington the privilege of avoiding too much entanglement with religion by denying funding that would benefit the clergy especially because the Court observed, for you originalists out there, that "most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry."

The second relevant case is Trinity Lutheran Church v. Comer. Missouri enacted a program that allowed private schools to receive from the state reimbursement for re-doing their playgrounds with recycled tires. Missouri also has a no-aid constitutional provision which prohibited the plaintiff church school from participating in the program, The Court issued a divided ruling with a number of different opinions but the bottom line was that, as applied to playgrounds only, the no-aid provision was unconstitutional. Notably, the Court did not rule the no-aid provision unconstitutional on its face or even as applied to school programs generally.

The oral argument in Espinoza, as well as the votes in Trinity Lutheran, suggest there are four votes to not only require Montana to reinstate its program and include religious schools but also to possibly strike down the no aid provisions in 38 state constitutions. Those four votes are, of course, Justices Thomas, Alito, Gorsuch, and Kavanaugh (never mind there is no plausible originalist argument supporting such a result). Chief Justice Roberts appears to be the wild card vote in the case.

A holding that states must fund religious educational institutions if they fund secular ones would upend programs in almost twenty states and be a major and unjustifiable expansion of the requirements of the free exercise clause. It is one thing to require programs involving playgrounds or physical structures to be religiously neutral but quite another to require all school aid programs to be religiously neutral. Moreover, as one of the amicus briefs in the case argues, in practice and on the ground in Montana, the program would only benefit Christian schools because there aren't any other religious schools in the state. Avoiding that result should be enough of a state interest to justify Montana's no-aid rule as applied to religious schools.

More importantly, however, our Umpire-in-Chief should recognize that this case is a totally absurd tool to use to announce a broad and new constitutional rule that would cause chaos in states from coast to coast. This is not a case where religious schools are being deprived of a benefit that the state is providing to non-religious schools. The Montana supreme court ended the program altogether on state law grounds. Whether Montana was right to do so or not, its opinion was not based on federal law. If the Supreme Court were to reverse the Montana Supreme Court's decision there is no guarantee the program would be re-funded for future years. In effect, the Court would be issuing an advisory opinion.

The plaintiffs argue that the Supreme Court should interfere in this case despite the Montana supreme court's ending of the program by analogizing this conflict to a few decisions from the desegregation era where states closed public schools rather than allowing African-Americans to attend those schools. But in those cases the states were closing the schools for racially discriminatory reasons. That kind of illicit motive is simply not present in Espinoza. Avoiding excessive entanglement between church and state and the strife that comes along with funding of religious organizations in no sane world can be compared to state officials wanting to keep public schools all white.

The eventual fate of the no-aid provisions in 38 state constitutions should probably be decided by the Supreme Court but only on an as applied basis. Most people agree that these provisions don't and couldn't be constitutionally applied to police, fire, and sanitation services. On the other hand, most people also agree that states could and quite probably would have to refuse to use tax dollars to fund bibles for religious school students, the salaries of religious school teachers, or the incomes of priests and rabbis. That there are hard cases in between is the product of the complex interplay between establishment clause and free exercise clause values. But this case is not a proper vehicle for the Court to further flesh out these difficult problems because the game is already over (to mix metaphors). Montana does not have, and in fact never had, a secular only scholarship program. The plaintiffs in this case have struck out, and the only reasonable course for the Umpire-in-Chief is to join with the four liberals and rule against them.