Espinoza v. Montana Department of Revenue

591 U.S. ___ (2020)

Case Year: 2020

Case Ruling: 5-4, Reversed and remanded

Opinion Justice: Roberts

 

In 1875, the Speaker of the U.S. House of Representatives, James Blaine, proposed a constitutional amendment explicitly to prohibit states from providing financial aid to parochial schools.  Although the proposed amendment failed—it passed overwhelming in the House but fell short of the required two-thirds support in the Senate—it served to motivate a fair number of states to incorporate similar amendments into their own state constitutions.  One of those states was Montana, whose prohibition on aid to religious schools dates back to its admission as a state in 1889.  In its present form, the state’s constitution forbids the use of “any public fund or monies…to aid any [educational] institution, controlled…by any church, sect, or denomination.”

            In 2015, the legislature decided to create a state-sponsored scholarship fund that would help pay the tuition costs incurred by Montanans who wished to send their children to private schools.  Since the scholarships were funded through a system of tax credits, the Minnesota Department of Revenue oversaw the program.  In order to ensure that it did not run afoul of the state constitution, the Department issued a rule that made religious schools ineligible for the use of these scholarship funds.

            Kendra Espinoza was a single mother who wanted to use the scholarship funds to support the education of her daughters at Stillwater Christian School, a fully accredited, religious school, located in Kalispell in the northwest corner of the state.  Under the program’s rules, however, the scholarship money could not be utilized to pay tuition at a religious institution.  Together with two other mothers, she decided to sue the state, arguing that the restriction on the use of the scholarship funds violated the Free Exercise of religion, by discriminating against their religious convictions.  Initially, Ms. Espinoza was successful, but the state sought review from Montana’s Supreme Court.  That court decided that, since it did not see any way in which the program could reliably prevent public funds from flowing into religious schools, the state constitution commanded that the scholarship program be invalidated in its entirety; it eliminated public support for all private schools, religious or otherwise.

            When Ms. Espinoza brought her case to the U.S. Supreme Court, she had to confront two of the Court’s precedents—precedents that seemed to point in opposite directions.  On the one hand was Locke v. Davey (2004), a case upholding the right of a state to establish college scholarships that could be used at qualified institutions to pursue degrees in any subject except devotional theology (i.e., degrees sought in preparation for being an active member of the clergy).  On the other hand was Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), a decision in which the Court held that a state’s charitable program offering material for soft playground surfaces could not be denied to another otherwise qualified nonprofit organization—in this case, a preschool—because it was controlled by a church.  Was Montana’s restriction on using its funds in religious schools more like the decision upholding the ban on public money being use for religious training?  Or was it more akin to a decision requiring that a state’s resources be made available on an equal basis to both non-religious and religious applicants?

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program.…[W]e assess whether excluding religious schools and affected families from that program was consistent with the Federal Constitution.

The Free Exercise Clause…“protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” Trinity Lutheran. Those “basic principle[s ]” have long guided this Court.

…[D]isqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Trinity Lutheran…

…Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools.  The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.  This is apparent from the plain text.  The provision bars aid to any school “controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, §6(1).  The provision’s title—“Aid prohibited to sectarian schools”—confirms that the provision singles out schools based on their religious character….

...The Montana Supreme Court applied the no-aid provision solely by reference to religious status.  The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches” “sectarian schools,” and “religiously-affiliated schools.”  Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were “religiously affiliated” and “controlled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding “schools controlled by churches.”….

Undeterred by Trinity Lutheran, the Montana Supreme Court applied the no-aid provision to hold that religious schools could not benefit from the scholarship program.  So applied, the provision “impose[s] special disabilities on the basis of religious status” and “condition[s] the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.” Trinity Lutheran.  To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation.  Placing such a condition on benefits or privileges “inevitably deters or discourages the exercise of First Amendment rights.” The Free Exercise Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqualifying the religious from government aid as Montana did here.…

Seeking to avoid Trinity Lutheran, the Department contends that this case is instead governed by Locke v. Davey (2004).  Locke also involved a scholarship program. The State of Washington provided scholarships paid out of the State’s general fund to help students pursuing postsecondary education.  The scholarships could be used at accredited religious and nonreligious schools alike, but Washington prohibited students from using the scholarships to pursue devotional theology degrees, which prepared students for a calling as clergy. This prohibition prevented Davey from using his scholarship to obtain a degree that would have enabled him to become a pastor.  We held that Washington had not violated the Free Exercise Clause.

Locke differs from this case in two critical ways. First, Locke explained that Washington had “merely chosen not to fund a distinct category of instruction”: the “essentially religious endeavor” of training a minister “to lead a congregation.”  Thus, Davey “was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.”  Apart from that narrow restriction, Washington’s program allowed scholarships to be used at “pervasively religious schools” that incorporated religious instruction throughout their classes.   By contrast, Montana’s Constitution does not zero in on any particular “essentially religious” course of instruction at a religious school.  Rather, as we have explained, the no-aid provision bars all aid to a religious school “simply because of what it is,” putting the school to a choice between being religious or receiving government benefits.  At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefits.

Second, Locke invoked a “historic and substantial” state interest in not funding the training of clergy, explaining that “opposition to...funding ‘to support church leaders’ lay at the historic core of the Religion Clauses.”  As evidence of that tradition, the Court in Locke emphasized that the propriety of state-supported clergy was a central subject of founding-era debates, and that most state constitutions from that era prohibited the expenditure of tax dollars to support the clergy.

But no comparable “historic and substantial” tradition supports Montana’s decision to disqualify religious schools from government aid.  In the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones.  “Far from prohibiting such support, the early state constitutions and statutes actively encouraged this policy.” L. Jorgenson, The State and the Non-Public School, 1825–1925 (1987).  Local governments provided grants to private schools, including religious ones, for the education of the poor.  Even States with bans on government-supported clergy, such as New Jersey, Pennsylvania, and Georgia, provided various forms of aid to religious schools.  Early federal aid (often land grants) went to religious schools.  Congress provided support to denominational schools in the District of Columbia until 1848, and Congress paid churches to run schools for American Indians through the end of the 19th century.  After the Civil War, Congress spent large sums on education for emancipated freedmen, often by supporting denominational schools in the South through the Freedmen’s Bureau.

The Department argues that a tradition against state support for religious schools arose in the second half of the 19th century, as more than 30 States—including Montana—adopted no-aid provisions.  Such a development, of course, cannot by itself establish an early American tradition….In addition, many of the no-aid provisions belong to a more checkered tradition shared with the Blaine Amendment of the 1870s. That proposal—which Congress nearly passed—would have added to the Federal Constitution a provision similar to the state no-aid provisions, prohibiting States from aiding “sectarian” schools. Mitchell v. Helms (2000).  “[I]t was an open secret that ‘sectarian’ was code for ‘Catholic.’”  The Blaine Amendment was “born of bigotry” and “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general”; many of its state counterparts have a similarly “shameful pedigree.”  The no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause.

The Department argues that several States have rejected referendums to overturn or limit their no-aid provisions, and that Montana even re-adopted its own in the 1970s, for reasons unrelated to anti-Catholic bigotry.  But, on the other side of the ledger, many States today—including those with no-aid provisions—provide support to religious schools through vouchers, scholarships, tax credits, and other measures. According to petitioners, 20 of 37 States with no-aid provisions allow religious options in publicly funded scholarship programs, and almost all allow religious options in tax credit programs….

Because the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school, the “strictest scrutiny” is required. Trinity Lutheran.  That “stringent standard” is not “watered down but really means what it says,” Church of Lukumi Babalu Aye, Inc. v. Hialeah, (1993).  To satisfy it, government action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.”

The Montana Supreme Court asserted that the no-aid provision serves Montana’s interest in separating church and State “more fiercely” than the Federal Constitution.  But “that interest cannot qualify as compelling” in the face of the infringement of free exercise here. Trinity Lutheran.  A State’s interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause...is limited by the Free Exercise Clause.”…

...[W]e do not see how the no-aid provision promotes religious freedom.  As noted, this Court has repeatedly upheld government programs that spend taxpayer funds on equal aid to religious observers and organizations, particularly when the link between government and religion is attenuated by private choices.  A school, concerned about government involvement with its religious activities, might reasonably decide for itself not to participate in a government program.  But we doubt that the school’s liberty is enhanced by eliminating any option to participate in the first place….

The Department also suggests that the no-aid provision advances Montana’s interests in public education.  According to the Department, the no-aid provision safeguards the public school system by ensuring that government support is not diverted to private schools….On the Department’s view, an interest in public education is undermined by diverting government support to any private school, yet the no-aid provision bars aid only to religious ones.  A law does not advance “an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi.  Montana’s interest in public education cannot justify a no-aid provision that requires only religious private schools to “bear [its] weight.”

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….

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The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

 

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins, concurring.

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.

This case involves the Free Exercise Clause, not the Establishment Clause….Under the modern, but erroneous, view of the Establishment Clause, the government must treat all religions equally and treat religion equally to nonreligion….This “equality principle,” the theory goes, prohibits the government from expressing any preference for religion—or even permitting any signs of religion in the governmental realm. Thus, when a plaintiff brings a free exercise claim, the government may defend its law, as Montana did here, on the ground that the law’s restrictions are required to prevent it from “establishing” religion.

This understanding of the Establishment Clause is unmoored from the original meaning of the First Amendment.  As I have explained in previous cases, at the founding, the Clause served only to “protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government.” Zelman v. Simmons-Harris (2002) (Thomas, J., concurring) (emphasis added)….

Under this Court’s current approach, state and local governments may rely on the Establishment Clause to justify policies that others wish to challenge as violations of the Free Exercise Clause. Once the government demonstrates that its policy is required for compliance with the Constitution, any claim that the policy infringes on free exercise cannot survive….

Historical evidence suggests that many advocates for this separationist view were originally motivated by hostility toward certain disfavored religions.  And this Court’s adoption of a separationist interpretation has itself sometimes bordered on religious hostility.  Justice Black, well known for his role in formulating the Court’s modern Establishment Clause jurisprudence, once described Catholic petitioners as “powerful sectarian religious propagandists” “looking toward complete domination and supremacy” of their “preferences and prejudices.” Board of Ed. of Central School Dist. No. 1 v. Allen (1968) (dissenting opinion). Other Members of the Court have characterized religions as “divisive forces.” Edwards v. Aguillard (1987).  And the Court once described a statute permitting employees to request accommodations to avoid work on the Sabbath as “arm[ing]” religious employees with the “absolute and unqualified right” to pursue their religion “over all other…interests.” Estate of Thornton v. Caldor, Inc. (1985).

Although such hostility may not be overtly expressed by the Court any longer, manifestations of this “trendy disdain for deep religious conviction” assuredly live on.  Locke (Scalia, J., dissenting). They are evident in the fact that, unlike other constitutional rights, the mere exposure to religion can render an “offended observer” sufficiently injured to bring suit against the government, American Legion [v. American Humanist Association (2019)] Gorsuch, J., concurring in judgment), even if he has not been coerced in any way to participate in a religious practice…

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…[T]his Court has an unfortunate tendency to prefer certain constitutional rights over others.  The Free Exercise Clause, although enshrined explicitly in the Constitution, rests on the lowest rung of the Court’s ladder of rights, and precariously so at that.  Returning the Establishment Clause to its proper scope will not completely rectify the Court’s disparate treatment of constitutional rights, but it will go a long way toward allowing free exercise of religion to flourish as the Framers intended.  I look forward to the day when the Court takes up this task in earnest.

 

JUSTICE ALITO, concurring.

The origin of Montana’s “no-aid” provision, Mont. Const., Art. X, §6(1) (1972), is emphasized in petitioners’ brief and in the briefs of numerous supporting amici.

These briefs, most of which were not filed by organizations affiliated with the Catholic Church, point out that Montana’s provision was modeled on the failed Blaine Amendment to the Constitution of the United States.  Named after House Speaker James Blaine, the Congressman who introduced it in 1875, the amendment was prompted by virulent prejudice against immigrants, particularly Catholic immigrants.  In effect, the amendment would have “bar[red] any aid” to Catholic and other “sectarian” schools. Mitchell v. Helms (2000).  As noted in a publication from the United States Commission on Civil Rights, a prominent supporter of this ban was the Ku Klux Klan.

The Blaine Amendment was narrowly defeated, passing in the House but falling just short of the two-thirds majority needed in the Senate to refer the amendment to the States. Afterwards, most States adopted provisions like Montana’s to achieve the same objective at the state level, often as a condition of entering the Union. Thirty-eight States still have these “little Blaine Amendments” today.

This history is well-known and has been recognized in opinions of this Court….

A wave of immigration in the mid-19th century, spurred in part by potato blights in Ireland and Germany, significantly increased this country’s Catholic population.  Nativist fears increased with it.  An entire political party, the Know Nothings, formed in the 1850s “to decrease the political influence of immigrants and Catholics,” gaining hundreds of seats in Federal and State Government.

Catholics were considered by such groups not as citizens of the United States, but as “soldiers of the Church of Rome,” who “would attempt to subvert representative government.”  Catholic education was a particular concern.  As one series of newspaper articles argued, “Popery is the natural enemy of general education….If it is establishing schools, it is to make them prisons of the youthful intellect of the country.” S. Morse, Foreign Conspiracy Against the Liberties of the United States (1835)….

Montana’s no-aid provision was the result of this same prejudice. When Congress allowed Montana into the Union in 1889, it still included prominent supporters of the failed Blaine Amendment.  The Act enabling Montana to become a State required “[t]hat provision shall be made for the establishment and maintenance of systems of public schools…free from sectarian control.”  Montana thereafter adopted its constitutional rule against public funding for any school “controlled” by a “sect.” Mont. Const., Art. XI, §8 (1889). There appears to have been no doubt which schools that meant.  As petitioners show, Montana’s religious schools—and its private schools in general—were predominantly Catholic….

…The tax-credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there.  The program helped parents of modest means do what more affluent parents can do:  send their children to a school of their choice.  The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that “[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

 

JUSTICE GORSUCH, concurring.

The Court characterizes the Montana Constitution as discriminating against parents and schools based on “religious status and not religious use.”  No doubt, the Court proceeds as it does to underscore how the outcome of this case follows from Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), where the Court struck down a similar public benefits restriction that, it held, discriminated on the basis of religious status.  No doubt, too, discrimination on the basis of religious status raises grave constitutional questions for the reasons the Court describes.  But I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way….

…[A]ny jurisprudence grounded on a status-use distinction seems destined to yield more questions than answers.  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. Nor are the line-drawing challenges here unique; they have arisen before and will again.

Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion.  That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly….So whether the Montana Constitution is better described as discriminating against religious status or use makes no difference….

…What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways?  What does it mean to tell an Orthodox Jew that she may have her religion but may be targeted for observing her religious calendar?...The right to be religious without the right to do religious things would hardly amount to a right at all….

…Effectively, the [state supreme] court told the state legislature and parents of Montana like Ms. Espinoza:  You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered.  That condition on a public benefit discriminates against the free exercise of religion.  Calling it discrimination on the basis of religious status or religious activity makes no difference:  It is unconstitutional all the same.

 

JUSTICE GINSBURG, with whom JUSTICE KAGAN joins, dissenting.

Past decisions in this area have entailed differential treatment occasioning a burden on a plaintiff’s religious exercise. Lyng [v. Automobile Workers (1988)]; Trinity Lutheran.  This case is missing that essential component.  Recall that the Montana court remedied the state constitutional violation by striking the scholarship program in its entirety.  Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.  Put somewhat differently, petitioners argue that the Free Exercise Clause requires a State to treat institutions and people neutrally when doling out a benefit—and neutrally is how Montana treats them in the wake of the state court’s decision.

…[T]he Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise. Petitioners may still send their children to a religious school.  And the Montana Supreme Court’s decision does not pressure them to do otherwise….Neither giving up their faith, nor declining to send their children to sectarian schools, would affect their entitlement to scholarship funding. There simply are no scholarship funds to be had….

Nearing the end of its opinion, the Court writes: “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.” Because Montana’s Supreme Court did not make such a decision—its judgment put all private school parents in the same boat—this Court had no occasion to address the matter.  On that sole ground, and reaching no other issue, I dissent from the Court’s judgment.

 

JUSTICE BREYER, with whom JUSTICE KAGAN, dissenting.

It may be that, under our precedents, the Establishment Clause does not forbid Montana to subsidize the education of petitioners’ children.  But, the question here is whether the Free Exercise Clause requires it to do so.  The majority believes that the answer to that question is “yes.”  It writes that “once a State decides” to support nonpublic education, “it cannot disqualify some private schools solely because they are religious.”  I shall explain why I disagree.

As the majority acknowledges, two cases are particularly relevant:  Trinity Lutheran Church of Columbia, Inc. v. Comer and Locke v. Davey.  In Trinity Lutheran, we considered whether Missouri could exclude a church-owned preschool from applying for a grant to renovate its playground.  The Court assumed that the Establishment Clause permitted the State to make grants of this kind to church-affiliated schools….The Court therefore went on to consider the burdens that Missouri’s law imposed upon the church’s right to free exercise.

By excluding schools with ties to churches, the Court wrote, the State’s law put the church “to a choice:  It may participate in an otherwise available benefit program or remain a religious institution.”…[T]he Court held that the Free Exercise Clause required Missouri to include church-affiliated schools as candidates for playground renovation grants.

We confronted a different kind of aid program, and came to a different conclusion, in Locke.  There, we reviewed a Washington law that offered taxpayer-funded scholarships to college students on the express condition that they not pursue degrees that were “devotional in nature or designed to induce religious belief.”  Again, the Court assumed that the Establishment Clause permitted the State to support students seeking such degrees.  But the Court concluded that the Free Exercise Clause did not require it to do so….

The majority finds that the school-playground case, Trinity Lutheran, and not the religious-studies case, Locke, controls here.  I disagree.  In my view, the program at issue here is strikingly similar to the program we upheld in Locke and importantly different from the program we found unconstitutional in Trinity Lutheran.  Like the State of Washington in Locke, Montana has chosen not to fund (at a distance) “an essentially religious endeavor”—an education designed to “induce religious faith.”  That kind of program simply cannot be likened to Missouri’s decision to exclude a church school from applying for a grant to resurface its playground.

What, then, is the difference between Locke and the present case?  And what is it that leads the majority to conclude that funding the study of religion is more like paying to fix up a playground (Trinity Lutheran) than paying for a degree in theology (Locke)?  The majority’s principal argument appears to be that, as in Trinity Lutheran, Montana has excluded religious schools from its program “solely because of the religious character of the schools.”  The majority seeks to contrast this status-based discrimination with the program at issue in Locke, which it says denied scholarships to divinity students based on the religious use to which they put the funds—i.e., training for the ministry, as opposed to secular professions.

It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation.  But this case does not involve a claim of status-based discrimination.  The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests.  We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke, is what petitioners “propos[e] to do—use the funds to” obtain a religious education….

The majority next contends that there is no “‘historic and substantial’ tradition against aiding” religious schools….[But] James Madison argued that compelling state sponsorship of religion in this way was “a signal of persecution” that “degrades from the equal rank of citizens all those whose opinions in religion do not bend to those of the Legislative authority.”…

…[T]he Bill for Religious Liberty drafted by Thomas Jefferson…emphasized the risk to religious liberty that state-supported religious indoctrination threatened. “[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves,” the preamble declared, “is sinful and tyrannical.” A Bill for Establishing Religious Freedom (1779).  The statute accordingly provided “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” Similar proscriptions were included in the early constitutions of many States….

I see no meaningful difference between the concerns that Madison and Jefferson raised and the concerns inevitably raised by taxpayer support for scholarships to religious schools….

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, dissenting.

The majority holds that a Montana scholarship program unlawfully discriminated against religious schools by excluding them from a tax benefit.  The threshold problem, however, is that such tax benefits no longer exist for anyone in the State.  The Montana Supreme Court invalidated the program on state-law grounds, thereby foreclosing the…challenge petitioners raise here….The Court nevertheless reframes the case and appears to ask whether a longstanding Montana constitutional provision is facially invalid under the Free Exercise Clause, even though petitioners disavowed bringing such a claim….

Not only is the Court wrong to decide this case at all, it decides it wrongly. In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), this Court held, “for the first time, that the Constitution requires the government to provide public funds directly to a church.” (Sotomayor, J., dissenting).  Here, the Court invokes that precedent to require a State to subsidize religious schools if it enacts an education tax credit.  Because this decision further “slights both our precedents and our history” and “weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” I respectfully dissent….

Until Trinity Lutheran, the right to exercise one’s religion did not include a right to have the State pay for that religious practice.  That is because a contrary rule risks reading the Establishment Clause out of the Constitution.  Although the Establishment Clause “permit[s] some government funding of secular functions performed by sectarian organizations,” the Court’s decisions “provide[d] no precedent for the use of public funds to finance religious activities.” Rosenberger v. Rector and Visitors of Univ. of Va. (1995) (O’Connor, J., concurring)….

…Properly understood, this case is no different from Locke because petitioners seek to procure what the plaintiffs in Locke could not:  taxpayer funds to support religious schooling.  Indeed, one of the concurrences lauds petitioners’ spiritual pursuit, acknowledging that they seek state funds for manifestly religious purposes like “teach[ing] religion” so that petitioners may “outwardly and publicly” live out their religious tenets (opinion of Gorsuch, J.).  But those deeply religious goals confirm why Montana may properly decline to subsidize religious education.  Involvement in such spiritual matters implicates both the Establishment Clause, and the free exercise rights of taxpayers, “denying them the chance to decide for themselves whether and how to fund religion,” Trinity Lutheran (Sotomayor, J., dissenting)…

The Court…suggests that by abstaining from funding religious activity, the State is “suppress[ing]” and “penaliz[ing]” religious activity.  But a State’s decision not to fund religious activity does not “disfavor religion; rather, it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns.” Trinity Lutheran (Sotomayor, J., dissenting).  That is, a “legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.” Regan v. Taxation With Representation of Wash. (1983).

…[I]t is no answer to say that this case involves “discrimination.” A “decision to treat entities differently based on distinctions that the Religion Clauses make relevant does not amount to discrimination.” Trinity Lutheran (Sotomayor, J., dissenting).  So too here.

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Today’s ruling is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place. We once recognized 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.” Schempp (emphasis deleted). Today’s Court, by contrast, rejects the Religion Clauses’ balanced values in favor of a new theory of free exercise, and it does so only by setting aside well-established judicial constraints.

I respectfully dissent.