Some Puzzles in Espinoza v. Montana Dept of Revenue

by Michael C. Dorf

The big news in yesterday's SCOTUS ruling in Espinoza v. Montana Dep't of Revenue is that there is very little remaining "play in the joints" between the First Amendment's Free Exercise and Establishment Clauses. That's a quote from the two most recent previous Chief Justices: Chief Justice Burger writing for the Court in Walz v. Tax Comm'r (1970) and Chief Justice Rehnquist writing for the Court Locke v. Davey. Play in the joints is a federalism-friendly idea. It allows that some states have some discretion in deciding how to treat religion and religious institutions. The Free Exercise Clause limits the ability of states to act on hostility towards religion, while the Establishment Clause limits their ability to favor religion, but there is a range of permissible policies in between. Thus, in Locke, the Court allowed the State of Washington to provide scholarships to postsecondary students so long as they did not use them to study "devotional theology." Although the federal Establishment Clause would allow the money to be spent that way (because the students rather than the state would choose the course of study under a generally neutral program), Washington was allowed to take a somewhat stricter view of church/state separation without being deemed to run afoul of the federal Free Exercise Clause.

The majority opinion of Chief Justice Roberts in Espinoza nominally leaves Locke undisturbed, distinguishing rather than overruling it on two grounds: (1) Montana's exclusion of religious institutions from its scholarship program is based on their religious status rather than the use to which the funds would be put, as in Locke; and (2) a “historic and substantial” tradition of not funding the clergy that does not extend to not funding education at religious schools. Whether these distinctions and thus the play-in-the-joints principle itself survive in the long run remains to be seen. Justice Breyer writes in dissent that the Court renders the play-in-the-joints principle "a shadow of its former self." And elsewhere in his majority opinion, CJ Roberts notes that Justices Thomas and Gorsuch have questioned the status/use distinction (as they do again in concurrences in Espinoza) and suggests that in a future case the Court could eliminate it. If so, that would mean that point (1) would no longer distinguish Locke. And even if the Court would adhere to point (2), that would restrict the play-in-the-joints idea to the very narrow category of state decisions not to fund the clergy themselves, as opposed to a wide range of other funding decisions.

Accordingly, it is fair to read Espinoza as very substantially undercutting the freedom of action of states with respect to religion. In that respect, it's 5-4 against "states' rights," with the conservatives against and the liberals for. But the substantive holding is not the only aspect of Espinoza that has peculiar implications. 
Dissenting on quasi-procedural grounds, Justice Ginsburg, joined by Justice Kagan, makes what seems like a devastating point: Montana does not discriminate against religion by withholding a benefit because when the Montana Supreme Court concluded that the scholarship program could not, consistent with the state constitution, include expenditures at religious schools, it cancelled the scholarship program entirely. Thus, she says, there's no discrimination. Justice Sotomayor does not join Justice Ginsburg's dissent, but she endorses this view in her dissent. Of the dissenters, only Justice Breyer does not say that Montana treats religious schools in the same way as secular ones.

The majority offers a somewhat puzzling response. CJ Roberts says first that the Montana Supreme Court, not the Montana legislature, ended the program. He then writes:
When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. Had the Court recognized that this was, indeed, “one of those cases” in which application of the no-aid provision “would violate the Free Exercise Clause,” the Court would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program. 
There's a lot going on there. For starters, it seems that the majority thinks that it would have been permissible for the Montana legislature to do exactly what the Montana Supreme Court did for exactly the same reason. But with a few notable exceptions, ever since the landmark decision in Erie RR v. Tompkins, federal courts are supposed to treat state law the same, regardless of whether it emanates from a state legislature or a state court. Accordingly, perhaps we shouldn't read CJ Roberts to be saying that the Montana legislature could have eliminated the program for exactly the same reasons that the Montana Supreme Court did.

Yet now we have another puzzle. In Palmer v. Thompson, the Court ruled that a Mississippi city's decision to close its swimming pools rather than desegregate them did not deny equal protection because the consequence of the leveling down was that no one was unequally denied an opportunity to swim in a public pool based on race. Yet if leveling down is permissible notwithstanding illicit racial bias, why would it be impermissible based on illicit anti-religious bias?

The majority's response to Justice Ginsburg implicitly creates tension with either Erie or Palmer. If the Montana legislature could have done what the Montana Supreme Court is barred from doing by the SCOTUS, there's tension with Erie's rule that state courts are as authoritative on state law as state legislatures. But if the rule is the same for the Montana legislature and the Montana Supreme Court, then that rule--government cannot level down if en route to the leveling down decision, it discriminates on an illicit basis (like religion or race)--contradicts Palmer.

Which is it? Let me offer three possibilities.

(1) Erie states a general proposition, but it is not quite true that state courts and state legislatures are always treated identically for federal constitutional purposes. Various provisions of the federal Constitution take for granted the existence of separate branches of state government. That fact was the basis for the controversial concurrence in Bush v. Gore, but it can also apply more prosaically. It is possible that a court's failure to respect federal Free Exercise en route to leveling down under a state no-aid provision falls into one of the exceptions to Erie's general rule. However, the Chief Justice's opinion does not explain which one or why.

(2) Or perhaps Palmer is no longer good law. In this view, if it were possible to prove that a legislature actually took the steps that the Montana Supreme Court took, then its action would be invalid. Palmer was controversial when decided by a 5-4 margin and remains so today. Parts of it are difficult to square with the focus on illicit intent in later cases. It's possible to imagine that the Court would overrule Palmer.

Yet there are two difficulties with this view. First, the Court hasn't actually overruled Palmer yet. It would be odd to do so without even mentioning the case. Second, it has generally been liberals who criticize Palmer. Yet note that if Palmer-is-no-longer-good-law explains the majority opinion, then Palmer-remains-good-law would be a premise of the dissent--despite the fact that all of the Justices in the majority taking the liberal anti-Palmer position are more conservative than all of the Justices in the dissent taking the pro-Palmer position.

(3) Perhaps the best explanation is that CJ Roberts does not regard the flaw in the Montana Supreme Court process as analogous to the illicit intent in Palmer. On the key point, the majority opinion in Espinoza reads more like it is posing a question of Supreme Court authority to review a state court decision notwithstanding the adequate-and-independent-state-law-ground doctrine. Roberts thinks that the Montana Supreme Court erroneously decided a federal issue en route to its state law ruling. Thus, the state law ruling is reviewable as resting on the federal ruling.

I believe that this third account explains what the Chief Justice was thinking. If confronting the issue directly, I suspect that he would say that in Palmer, the city officials recognized (because they were told by a court) that continuing to run segregated public pools would be unconstitutional and then made the decision to level down. By contrast, the Montana Supreme Court thought that the federal Free Exercise Clause was not an obstacle to applying the no-aid provision before it leveled down on state law grounds. Thus, the Mississippi officials did not make a mistake of federal law in the way that the Montana Supreme Court did (given the substantive holding by the SCOTUS) in Espinoza.

That leaves one remaining puzzle. Footnote 4 of the Espinoza majority opinion pretty clearly implies that on remand the Montana Supreme Court must reinstate the scholarship program, although the Montana legislature could repeal it. But then we're back to Explanation (1), which runs into Erie. If the Montana legislature can repeal the scholarship program in its entirety, then presumably the Montana Supreme Court can decide that (a) the original program violated the state no-aid clause; (b) but giving aid to secular schools while withholding it from religious ones violates Free Exercise (because the SCOTUS says so); and therefore (c) as a matter of state law the program is invalid. 

I read the Roberts opinion to reject that last chain of logic for one or both of two reasons: (A) Maybe it's wildly implausible as a matter of statutory construction, because the program as enacted by the state legislature included religious schools, so it never occurred to the Chief Justice that this was a possibility; or (B) As a matter of federal constitutional law, a state court is forbidden from construing state statutes under the influence of a federally unconstitutional state constitutional provision (here the no-aid clause as applied).

A plausible opinion might have been written getting to the result the majority wanted on the question of whether the application of the no-aid clause was properly before the Court, but the majority opinion in Espinoza barely recognizes, much less resolves, the sub-issues that would need to be addressed.