*1 OCTOBER TERM, 2019 (Slip Opinion)
Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See
United States
v.
Detroit Timber & Lumber Co.,
Syllabus ET AL . v . MONTANA DEPARTMENT OF
REVENUE ET AL .
CERTIORARI TO THE SUPREME COURT OF MONTANA No. 18–1195. Argued January 22, 2020—Decided June 30, 2020 The Montana Legislature established a program that grants tax credits
to those who donate to organizations that award scholarships for pri- vate school tuition. To reconcile the program with a provision of the Montana Constitution that bars government aid to any school “con- trolled in whole or in part by any church, sect, or denomination,” Art. X, §6(1), the Montana Department of Revenue promulgated “Rule 1,” which prohibited families from using the scholarships at religious schools. Three mothers who were blocked by Rule 1 from using schol- arship funds for their children’s tuition at Stillwater Christian School sued the Department in state court, alleging that the Rule discrimi- nated on the basis of their religious views and the religious nature of the school they had chosen. The trial court enjoined Rule 1. Reversing, the Montana Supreme Court held that the program, unmodified by Rule 1, aided religious schools in violation of the Montana Constitu- tion’s no-aid provision. The Court further held that the violation re- quired invalidating the entire program.
Held : The application of the no-aid provision discriminated against reli-
gious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitu- tion. Pp. 6–22.
(a) 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 Church of Colum-
bia, Inc. Comer
,
Syllabus
Id. , at ___. Here, the application of Montana’s no-aid provision ex- cludes religious schools from public benefits solely because of religious status. As a result, strict scrutiny applies. Pp. 6–12.
(b) Contrary to the Department’s contention, this case is not gov-
erned by
Locke
v.
Davey,
540 U. S. 712. The plaintiff in
Locke
was
denied a scholarship “because of what he proposed
to do
—use the
funds to prepare for the ministry,” an essentially religious endeavor.
Trinity Lutheran
,
(c) The proposed alternative approach involving a flexible case-by- case analysis is inconsistent with Trinity Lutheran . The protections of the Free Exercise Clause do not depend on a varying case-by-case anal- ysis regarding whether discrimination against religious adherents would serve ill-defined interests. Pp. 16–18.
(d) To satisfy strict scrutiny, government action “must advance ‘in-
terests of the highest order’ and must be narrowly tailored in pursuit
of those interests.”
Church of Lukumi Babalu Aye, Inc. Hialeah
, 508
U. S. 520, 546. Montana’s interest in creating greater separation of
church and State than the Federal Constitution requires “cannot qual-
ify as compelling” in the face of the infringement of free exercise here.
Trinity Lutheran
,
(e) Because the Free Exercise Clause barred the application of the no-aid provision here, the Montana Supreme Court had no authority to invalidate the program on the basis of that provision. The Depart- ment argues that the invalidation of the entire program prevented a free exercise violation, but the Department overlooks the Montana Su- preme Court’s threshold error of federal law. Had the Montana Su- preme Court recognized that the application of the no-aid provision was barred by the Free Exercise Clause, the Court would have had no
Syllabus
basis for invalidating the program. The Court was obligated to disre- gard the no-aid provision and decide this case consistent with the Fed- eral Constitution. Pp. 20–22.
R OBERTS , C. J., delivered the opinion of the Court, in which T HOMAS , A LITO , G ORSUCH , and K AVANAUGH , JJ., joined. T HOMAS , J., filed a con- curring opinion, in which G ORSUCH , J., joined. A LITO , J., and G ORSUCH , J., filed concurring opinions. G INSBURG , J., filed a dissenting opinion, in which K AGAN , J., joined. B REYER , J., filed a dissenting opinion, in which K AGAN , J., joined as to Part I. S OTOMAYOR , J., filed a dissenting opinion.
Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES
_________________ No. 18–1195 _________________ KENDRA ESPINOZA, ET AL ., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, ET AL . ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA [June 30, 2020] C HIEF J USTICE R OBERTS delivered the opinion of the Court.
The Montana Legislature established a program to pro- vide tuition assistance to parents who send their children to private schools. The program grants a tax credit to any- one who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The ques- tion presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision.
I A In 2015, the Montana Legislature sought “to provide pa- rental and student choice in education” by enacting a schol- arship program for students attending private schools. 2015 Mont. Laws p. 2168, §7. The program grants a tax *5 2
Opinion of the Court
credit of up to $150 to any taxpayer who donates to a par- ticipating “student scholarship organization.” Mont. Code Ann. §§15–30–3103(1), –3111(1) (2019). The scholarship organizations then use the donations to award scholarships to children for tuition at a private school. §§15–30– 3102(7)(a), –3103(1)(c).
So far only one scholarship organization, Big Sky Schol- arships, has participated in the program. Big Sky focuses on providing scholarships to families who face financial hardship or have children with disabilities. Scholarship or- ganizations like Big Sky must, among other requirements, maintain an application process for awarding the scholar- ships; use at least 90% of all donations on scholarship awards; and comply with state reporting and monitoring re- quirements. §§15–30–3103(1), –3105(1), –3113(1).
A family whose child is awarded a scholarship under the program may use it at any “qualified education provider”— that is, any private school that meets certain accreditation, testing, and safety requirements. See §15–30–3102(7). Vir- tually every private school in Montana qualifies. Upon re- ceiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholar- ship funds directly to the school. §15–30–3104(1). Neither the scholarship organization nor its donors can restrict awards to particular types of schools. See §§15–30– 3103(1)(b), –3111(1).
The Montana Legislature allotted $3 million annually to fund the tax credits, beginning in 2016. §15–30–3111(5)(a). If the annual allotment is exhausted, it increases by 10% the following year. Ibid. The program is slated to expire in 2023. 2015 Mont. Laws p. 2186, §33.
The Montana Legislature also directed that the program ——————
[1] The Legislature provided the same tax credit to taxpayers who donate to public schools for the purpose of supporting innovative educational programs or curing technology deficiencies at such schools. See Mont. Code Ann. §15–30–3110 (2019).
Opinion of the Court
be administered in accordance with Article X, section 6, of the Montana Constitution, which contains a “no-aid” provi- sion barring government aid to sectarian schools. See Mont. Code Ann. §15–30–3101. In full, that provision states:
“ Aid prohibited to sectarian schools . . . . The leg- islature, counties, cities, towns, school districts, and public corporations shall not make any direct or indi- rect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, acad- emy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, §6(1).
Shortly after the scholarship program was created, the Montana Department of Revenue promulgated “Rule 1,” over the objection of the Montana Attorney General. That administrative rule prohibited families from using scholar- ships at religious schools. Mont. Admin. Rule §42.4.802(1)(a) (2015). It did so by changing the definition of “qualified education provider” to exclude any school “owned or controlled in whole or in part by any church, re- ligious sect, or denomination.” Ibid. The Department ex- plained that the Rule was needed to reconcile the scholar- ship program with the no-aid provision of the Montana Constitution.
The Montana Attorney General disagreed. In a letter to the Department, he advised that the Montana Constitution did not require excluding religious schools from the pro- gram, and if it did, it would “very likely” violate the United States Constitution by discriminating against the schools and their students. See Complaint in No. DV–15–1152A (Dist. Ct. Flathead Cty.), Exh. 3, pp. 2, 5–6. The Attorney General is not representing the Department in this case.
Opinion of the Court B This suit was brought by three mothers whose children attend Stillwater Christian School in northwestern Mon- tana. Stillwater is a private Christian school that meets the statutory criteria for “qualified education providers.” It serves students in prekindergarten through 12th grade, and petitioners chose the school in large part because it “teaches the same Christian values that [they] teach at home.” App. to Pet. for Cert. 152; see id. , at 138, 167. The child of one petitioner has already received scholarships from Big Sky, and the other petitioners’ children are eligible for scholarships and planned to apply. While in effect, how- ever, Rule 1 blocked petitioners from using scholarship funds for tuition at Stillwater. To overcome that obstacle, petitioners sued the Department of Revenue in Montana state court. Petitioners claimed that Rule 1 conflicted with the statute that created the scholarship program and could not be justified on the ground that it was compelled by the Montana Constitution’s no-aid provision. Petitioners fur- ther alleged that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen for their children.
The trial court enjoined Rule 1, holding that it was based on a mistake of law. The court explained that the Rule was not required by the no-aid provision, because that provision prohibits only “appropriations” that aid religious schools, “not tax credits.” Id. , at 94.
The injunctive relief freed Big Sky to award scholarships to students regardless of whether they attended a religious or secular school. For the school year beginning in fall 2017, Big Sky received 59 applications and ultimately awarded 44 scholarships of $500 each. The next year, Big Sky re- ceived 90 applications and awarded 54 scholarships of $500 each. Several families, most with incomes of $30,000 or less, used the scholarships to send their children to Stillwa- ter Christian.
Opinion of the Court
In December 2018, the Montana Supreme Court reversed
the trial court.
The Montana Supreme Court went on to hold that the vi- olation of the no-aid provision required invalidating the en- tire scholarship program. The Court explained that the program provided “no mechanism” for preventing aid from flowing to religious schools, and therefore the scholarship program could not “under any circumstance” be construed as consistent with the no-aid provision. Id. , at 466–468, 435 P. 3d, at 613–614. As a result, the tax credit is no longer available to support scholarships at either religious or sec- ular private schools.
The Montana Supreme Court acknowledged that “an
overly-broad” application of the no-aid provision “could im-
plicate free exercise concerns” and that “there may be a
case” where “prohibiting the aid would violate the Free Ex-
ercise Clause.”
Id.
, at 468,
Finally, the Court agreed with petitioners that the De- partment had exceeded its authority in promulgating Rule 1. The Court explained that the statute creating the scholarship program had broadly defined qualifying schools to include all private schools, including religious ones, and
Opinion of the Court
the Department lacked authority to “transform” that defi- nition with an administrative rule. Id. , at 468–469, 435 P. 3d, at 614–615.
Several Justices wrote separately. All agreed that Rule 1
was invalid, but they expressed differing views on whether
the scholarship program was consistent with the Montana
and United States Constitutions. Justice Gustafson’s con-
currence argued that the program violated not only Mon-
tana’s no-aid provision but also the Federal Establishment
and Free Exercise Clauses.
Id.
, at 475–479, 435 P. 3d, at
619–621. Justice Sandefur echoed the majority’s conclusion
that applying the no-aid provision was consistent with the
Free Exercise Clause, and he dismissed the “modern juris-
prudence” of that Clause as “unnecessarily complicate[d]”
due to “increasingly value-driven hairsplitting and over-
stretching.”
Id.
, at 482–484,
Two Justices dissented. Justice Rice would have held
that the scholarship program was permissible under the no-
aid provision. He criticized the majority for invalidating
the program “
sua sponte
,” contending that no party had
challenged it under the State Constitution.
Id.
, at 495, 435
P. 3d, at 631. Justice Baker also would have upheld the
program. In her view, the no-aid provision did not bar the
use of scholarships at religious schools, and free exercise
concerns could arise under the Federal Constitution if it
did.
Id.
, at 493–494,
We granted certiorari.
II A The Religion Clauses of the First Amendment provide that “Congress shall make no law respecting an establish- ment of religion, or prohibiting the free exercise thereof.” We have recognized a “ ‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.” Trinity Lutheran Church of Columbia, *10 7
Opinion of the Court
Inc.
v.
Comer
,
The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from apply- ing Montana’s no-aid provision to bar religious schools from the scholarship program. For purposes of answering that question, we accept the Montana Supreme Court’s interpre- tation of state law—including its determination that the scholarship program provided impermissible “aid” within the meaning of the Montana Constitution—and we assess whether excluding religious schools and affected families from that program was consistent with the Federal Consti- tution.
——————
[2] J USTICE S OTOMAYOR argues that the Montana Supreme Court “ex-
Opinion of the Court
The Free Exercise Clause, which applies to the States un-
der the Fourteenth Amendment, “protects religious observ-
ers against unequal treatment” and against “laws that im-
pose special disabilities on the basis of religious status.”
Trinity Lutheran
,
Most recently,
Trinity Lutheran
distilled these and other
decisions to the same effect into the “unremarkable” conclu-
sion that disqualifying otherwise eligible recipients from a
public benefit “solely because of their religious character”
imposes “a penalty on the free exercise of religion that trig-
gers the most exacting scrutiny.”
pressly declined to reach any federal issue.”
Post
, at 6 (dissenting opin-
ion). Not so. As noted,
supra
, at 5, the Montana Supreme Court recog-
nized that certain applications of the no-aid provision could “violate the
Free Exercise Clause.”
Opinion of the Court
otherwise eligible church-owned preschool was denied a grant to resurface its playground. Missouri’s policy dis- criminated against the Church “simply because of what it is—a church,” and so the policy was subject to the “strictest scrutiny,” which it failed. Id. , at ___–___ (slip op., at 11– 15). We acknowledged that the State had not “criminal- ized” the way in which the Church worshipped or “told the Church that it cannot subscribe to a certain view of the Gos- pel.” Id. , at ___ (slip op., at 11). But the State’s discrimina- tory policy was “odious to our Constitution all the same.” Id. , at ___ (slip op., at 15).
Here too 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 pro-
hibited to sectarian schools”—confirms that the provision
singles out schools based on their religious character.
Ibid.
And the Montana Supreme Court explained that the provi-
sion forbids aid to any school that is “sectarian,” “religiously
affiliated,” or “controlled in whole or in part by churches.”
The Department counters that Trinity Lutheran does not govern here because the no-aid provision applies not be- cause of the religious character of the recipients, but be- cause of how the funds would be used—for “religious educa- tion.” Brief for Respondents 38. In Trinity Lutheran , a majority of the Court concluded that the Missouri policy vi- olated the Free Exercise Clause because it discriminated on
Opinion of the Court
the basis of religious status. A plurality declined to address
discrimination with respect to “religious uses of funding or
other forms of discrimination.”
This case also turns expressly on religious status and not
religious use. 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.” 393
Mont., at 463–467, 435 P. 3d, at 611–613. Applying this
provision to the scholarship program, the Montana Su-
preme 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 con-
cluded that the scholarship program ran afoul of the Mon-
tana Constitution by aiding “schools controlled by
churches.”
Id.
, at 466–467, 435 P. 3d, at 613–614. The
Montana Constitution discriminates based on religious sta-
tus just like the Missouri policy in
Trinity Lutheran
, which
excluded organizations “owned or controlled by a church,
sect, or other religious entity.”
The Department points to some language in the decision
below indicating that the no-aid provision has the goal or
effect of ensuring that government aid does not end up be-
ing used for “sectarian education” or “religious education.”
Opinion of the Court
issue here. Tr. of Oral Arg. 31. General school aid, the De-
partment stresses, could be used for religious ends by some
recipients, particularly schools that believe faith should
“
permeate
[ ]” everything they do. Brief for Respondents 39
(quoting
State ex rel. Chambers
v.
School Dist. No. 10
, 155
Mont. 422, 438,
Regardless, those considerations were not the Montana
Supreme Court’s basis for applying the no-aid provision to
exclude religious schools; that hinged solely on religious
status. Status-based discrimination remains status based
even if one of its goals or effects is preventing religious or-
ganizations from putting aid to religious uses.
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. 393
Mont., at 464–468,
Opinion of the Court
based discrimination is subject to “the strictest scrutiny.” Id. , at ___ (slip op., at 11).
None of this is meant to suggest that we agree with the
Department, Brief for Respondents 36–40, that some lesser
degree of scrutiny applies to discrimination against reli-
gious uses of government aid. See
Lukumi
, 508 U. S., at
546 (striking down law designed to ban religious practice
involving alleged animal cruelty, explaining that a law “tar-
get[ing] religious conduct for distinctive treatment or ad-
vanc[ing] legitimate governmental interests only against
conduct with a religious motivation will survive strict scru-
tiny only in rare cases”). Some Members of the Court, more-
over, have questioned whether there is a meaningful dis-
tinction between discrimination based on use or conduct
and that based on status. See
Trinity Lutheran
, 582 U. S.,
at ___–___ (slip op., at 1–2) (G ORSUCH , J., joined by
T HOMAS , J., concurring in part) (citing,
e.g.
,
Lukumi
, 508
U. S. 520, and
Thomas Review Bd. of Ind. Employment
Security Div.
,
B
Seeking to avoid
Trinity Lutheran
, the Department con-
tends that this case is instead governed by
Locke Davey
,
Opinion of the Court
This prohibition prevented Davey from using his scholar- ship to obtain a degree that would have enabled him to be- come 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 congre-
gation.”
Id.
, at 721. Thus, Davey “was denied a scholarship
because of what he proposed
to do
—use the funds to pre-
pare for the ministry.”
Trinity Lutheran
,
Second,
Locke
invoked a “historic and substantial” state
interest in not funding the training of clergy, 540 U. S., at
725, explaining that “opposition to . . . funding ‘to support
church leaders’ lay at the historic core of the Religion
Clauses,”
Trinity Lutheran
,
14
Opinion of the Court
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, p. 4 (1987);
e.g.,
R. Gabel, Public Funds for Church and Private Schools
210, 217–218, 221, 241–243 (1937); C. Kaestle, Pillars of the
Republic: Common Schools and American Society, 1760–
1860, pp. 166–167 (1983). Local governments provided
grants to private schools, including religious ones, for the
education of the poor. M. McConnell, et al., Religion and
the Constitution 318–319 (4th ed. 2016). Even States with
bans on government-supported clergy, such as New Jersey,
Pennsylvania, and Georgia, provided various forms of aid
to religious schools. See Kaestle,
supra
, at 166–167; Gabel,
supra
, at 215–218, 241–245, 372–374; cf.
Locke
, 540 U. S.,
at 723. Early federal aid (often land grants) went to reli-
gious schools. McConnell,
supra
, at 319. Congress provided
support to denominational schools in the District of Colum-
bia until 1848,
ibid.
, and Congress paid churches to run
schools for American Indians through the end of the 19th
century, see
Quick Bear Leupp
,
——————
[3] J USTICE B REYER sees “no meaningful difference” between concerns animating bans on support for clergy and bans on support for religious schools. Post , at 8–10. But evidently early American governments did. See supra, at 14. J USTICE B REYER contests particular examples but acknowledges that some bans on clergy support did not bar certain “spon- sorship” of religious schools. Post , at 10. And, central to the issue here,
Opinion of the Court
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 Mon-
tana—adopted no-aid provisions. See Brief for Respond-
ents 40–42 and App. D. Such a development, of course, can-
not by itself establish an early American tradition. J USTICE
S OTOMAYOR questions our reliance on aid provided during
the same era by the Freedmen’s Bureau,
post
, at 10 (dis-
senting opinion), but we see no inconsistency in recognizing
that such evidence may reinforce an early practice but can-
not create one. 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 Constitu-
tion a provision similar to the state no-aid provisions, pro-
hibiting States from aiding “sectarian” schools. See
Mitch-
ell Helms
,
he certainly does not identify a consistent early tradition, of the sort in-
voked in
Locke
,
against
support for religious schools. Virginia’s opposi-
tion to establishing university theology professorships and chartering
theological seminaries, see
ibid.
, do not fit the bill. Buckley, After Dis-
establishment: Thomas Jefferson’s Wall of Separation in Antebellum
Virginia, 61 J. So. Hist. 445, 452–453 (1995). J USTICE B REYER also in-
vokes Madison’s objections to the Virginia Assessment Bill,
post
, at 8–9,
but Madison objected in part because the Bill provided special support to
certain churches and clergy, thereby “violat[ing] equality by subjecting
some to peculiar burdens.” Memorial and Remonstrance Against Reli-
gious Assessments, Art. 4, reprinted in
Everson
,
Opinion of the Court
in general”; many of its state counterparts have a similarly
“shameful pedigree.”
Mitchell
,
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. See Brief for Re- spondents 20, 42. But, on the other side of the ledger, many States today—including those with no-aid provisions—pro- vide support to religious schools through vouchers, scholar- ships, tax credits, and other measures. See Brief for Okla- homa et al. as Amici Curiae 29–31, 33–35; Brief for Petitioners 5. According to petitioners, 20 of 37 States with no-aid provisions allow religious options in publicly funded scholarship programs, and almost all allow religious op- tions in tax credit programs. Reply Brief 22, n. 9.
All to say, we agree with the Department that the histor- ical record is “complex.” Brief for Respondents 41. And it is true that governments over time have taken a variety of approaches to religious schools. But it is clear that there is no “historic and substantial” tradition against aiding such schools comparable to the tradition against state-supported clergy invoked by Locke .
C
Two dissenters would chart new courses. J USTICE S OTOMAYOR would grant the government “some room” to “single . . . out” religious entities “for exclusion,” based on what she views as “the interests embodied in the Religion Clauses.” Post, at 8, 9 (quoting Trinity Lutheran , 582 U. S., at ___, ___ (S OTOMAYOR , J., dissenting) (slip op., at 8, 9)).
Opinion of the Court
J USTICE B REYER , building on his solo opinion in
Trinity Lu-
theran
, would adopt a “flexible, context-specific approach”
that “may well vary” from case to case.
Post
, at 14, 16; see
Trinity Lutheran
,
The simplest response is that these dissents follow from
prior separate writings, not from the Court’s decision in
Trinity Lutheran
or the decades of precedent on which it
relied. These precedents have “repeatedly confirmed” the
straightforward rule that we apply today: When otherwise
eligible recipients are disqualified from a public benefit
“solely because of their religious character,” we must apply
strict scrutiny.
Trinity Lutheran
,
For innovation, one must look to the dissents. Their “room[y]” or “flexible” approaches to discrimination against religious organizations and observers would mark a signif- icant departure from our free exercise precedents. The pro- tections of the Free Exercise Clause do not depend on a “judgment-by-judgment analysis” regarding whether dis- crimination against religious adherents would somehow
Opinion of the Court
serve ill-defined interests. Cf. Medellín v. Texas , 552 U. S. 491, 514 (2008).
D
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 scru-
tiny” is required.
Supra
, at 9, 12 (quoting
Trinity Lutheran
,
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.
The Department, for its part, asserts that the no-aid pro- vision actually promotes religious freedom. In the Depart- ment’s view, the no-aid provision protects the religious lib- erty of taxpayers by ensuring that their taxes are not directed to religious organizations, and it safeguards the freedom of religious organizations by keeping the govern- ment out of their operations. See Brief for Respondents 17– 23. An infringement of First Amendment rights, however, cannot be justified by a State’s alternative view that the in- fringement advances religious liberty. Our federal system
Opinion of the Court
prizes state experimentation, but not “state experimenta-
tion in the suppression of free speech,” and the same goes
for the free exercise of religion.
Boy Scouts of America
v.
Dale
,
Furthermore, we do not see how the no-aid provision pro- motes religious freedom. As noted, this Court has repeat- edly upheld government programs that spend taxpayer funds on equal aid to religious observers and organizations, particularly when the link between government and reli- gion 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 gov- ernment program. But we doubt that the school’s liberty is enhanced by eliminating any option to participate in the first place.
The Department’s argument is especially unconvincing
because the infringement of religious liberty here broadly
affects both religious schools and adherents. Montana’s no-
aid provision imposes a categorical ban—“broadly and
strictly” prohibiting “
any
type of aid” to religious schools.
And the prohibition before us today burdens not only re-
ligious schools but also the families whose children attend
or hope to attend them. Drawing on “enduring American
tradition,” we have long recognized the rights of parents to
direct “the religious upbringing” of their children.
Wiscon-
sin
v.
Yoder
,
Opinion of the Court
a religious private school rather than a secular one, and for no other reason.
The Department also suggests that the no-aid provision advances Montana’s interests in public education. Accord- ing to the Department, the no-aid provision safeguards the public school system by ensuring that government support is not diverted to private schools. See Brief for Respondents 19, 25. But, under that framing, the no-aid provision is fa- tally underinclusive because its “proffered objectives are not pursued with respect to analogous nonreligious con- duct.” Lukumi , 508 U. S., at 546. On the Department’s view, an interest in public education is undermined by di- verting 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 unpro- hibited.” Id. , at 547 (internal quotation marks and altera- tions omitted). Montana’s interest in public education can- not justify a no-aid provision that requires only religious private schools to “bear [its] weight.” Ibid.
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.
III
The Department argues that, at the end of the day, there is no free exercise violation here because the Montana Su- preme Court ultimately eliminated the scholarship pro- gram altogether. According to the Department, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally availa- ble benefit.
Two dissenters agree. J USTICE G INSBURG reports that the State of Montana simply chose to “put all private school parents in the same boat” by invalidating the scholarship program, post , at 5–6, and J USTICE S OTOMAYOR describes
Opinion of the Court
the decision below as resting on state law grounds having nothing to do with the federal Free Exercise Clause, see post , at 1, 6.
The descriptions are not accurate. The Montana Legisla- ture created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to in- validate the entire program. 393 Mont., at 466–468, 435 P. 3d, at 613–614.
The final step in this line of reasoning eliminated the pro-
gram, to the detriment of religious and non-religious
schools alike. But the Court’s error of federal law occurred
at the beginning. 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 Consti-
tution to reject the invitation. Had the Court recognized
that this was, indeed, “one of those cases” in which applica-
tion of the no-aid provision “would violate the Free Exercise
Clause,”
id.
, at 468,
Opinion of the Court
grounds. [4]
The Supremacy Clause provides that “the Judges in every
State shall be bound” by the Federal Constitution, “any
Thing in the Constitution or Laws of any State to the Con-
trary notwithstanding.” Art. VI, cl. 2. “[T]his Clause cre-
ates a rule of decision” directing state courts that they
“must not give effect to state laws that conflict with federal
law[ ].”
Armstrong
v.
Exceptional Child Center, Inc.
, 575
U. S. 320, 324 (2015). Given the conflict between the Free
Exercise Clause and the application of the no-aid provision
here, the Montana Supreme Court should have “disre-
gard[ed]” the no-aid provision and decided this case “con-
formably to the [C]onstitution” of the United States.
Mar-
bury Madison
,
* * *
The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not incon- sistent with this opinion.
It is so ordered. ——————
[4] J USTICE S OTOMAYOR worries that, in light of our decision, the Mon- tana Supreme Court must “order the State to recreate” a scholarship pro- gram that “no longer exists.” Post , at 6 (dissenting opinion). But it was the Montana Supreme Court that eliminated the program, in the deci- sion below, which remains under review. Our reversal of that decision simply restores the status quo established by the Montana Legislature before the Court’s error of federal law. We do not consider any altera- tions the Legislature may choose to make in the future.
[5] In light of this holding, we do not address petitioners’ claims that the no-aid provision, as applied, violates the Equal Protection Clause or the Establishment Clause.
T HOMAS , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 18–1195 _________________ KENDRA ESPINOZA, ET AL ., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, ET AL . ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA [June 30, 2020] J USTICE T HOMAS , with whom J USTICE G ORSUCH joins, concurring.
The Court correctly concludes that Montana’s no-aid pro- vision expressly discriminates against religion in violation of the Free Exercise Clause. And it properly provides relief to Montana religious schools and the petitioners who wish to use Montana’s scholarship program to send their chil- dren to such schools. I write separately to explain how this Court’s interpretation of the Establishment Clause contin- ues 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 reli- gious freedom.
I
A
This case involves the Free Exercise Clause, not the Es-
tablishment Clause. But as in all cases involving a state
actor, the modern understanding of the Establishment
Clause is a “brooding omnipresence,”
Southern Pacific Co.
Jensen
,
T HOMAS , J., concurring
nonreligion. As this Court stated in its first case applying the Establishment Clause to the States, the government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another.” Everson v. Board of Ed. of Ewing , 330 U. S. 1, 15 (1947); see also post , at 3 (B REYER , J., dissenting). This “equality principle,” the the- ory goes, prohibits the government from expressing any preference for religion—or even permitting any signs of re- ligion 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 re- strictions are required to prevent it from “establishing” re- ligion.
This understanding of the Establishment Clause is un-
moored 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
,
There is mixed historical evidence concerning whether the Establishment Clause was understood as an individual right at the time of the Fourteenth Amendment’s ratifica- tion. Id. , at 607–608. Even assuming that the Clause cre- ates 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.’ ” Id. , at 608 (quoting Lee Weisman , *28 3
T HOMAS , J., concurring
Thus, the modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood, the Establishment Clause does not prohibit States from fa- voring religion. They can legislate as they wish, subject only to the limitations in the State and Federal Constitu- tions. See Muñoz, The Original Meaning of the Establish- ment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585, 632 (2006).
B
I have previously made these points in Establishment
Clause cases to show that the Clause likely has no applica-
tion to the States or, if it is capable of incorporation, that
the Court employs a far broader test than the Clause’s orig-
inal meaning. See,
e.g.
,
American Legion
,
[1] A party wishing to expand the scope of the Establishment Clause be-
yond its meaning at the founding carries the burden of demonstrating
that this broader reading is historically sound.
Town of Greece Gallo-
way
,
T HOMAS , J., concurring
understanding of the former Clause has led to a correspond- ingly cramped interpretation of the latter.
Under this Court’s current approach, state and local gov- ernments 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 Constitu- tion, any claim that the policy infringes on free exercise can- not survive. A few examples suffice to illustrate this prac- tice.
Of most relevance to this case is
Locke
v.
Davey
, 540 U. S.
712 (2004), which Montana principally relies on to justify
its discriminatory law. In
Locke
, the Court held that pro-
hibiting a student from using a generally available state
scholarship to pursue a degree in devotional theology did
not violate the student’s free exercise rights. This was so,
the Court said, in part because it furthered the State’s “an-
tiestablishment interests” in avoiding the education of reli-
gious ministers.
Id.
, at 722. But no antiestablishment in-
terests, properly understood, were at issue in
Locke
. The
State neither coerced students to study devotional theology
nor conscripted taxpayers into supporting any form of or-
thodoxy. Thus, as I have explained,
Locke
incorrectly inter-
preted the Establishment Clause and should not impact
free exercise challenges.
Trinity Lutheran Church of Co-
lumbia
,
Inc.
v.
Comer
,
T HOMAS , J., concurring
F. 3d 344, 354 (CA1 2004); post , at 5–8 (B REYER , J., dissent- ing); post , at 9–10 (S OTOMAYOR , J., dissenting).
The Court has also repeatedly stated that a government
has a compelling interest in avoiding an Establishment
Clause violation altogether, which “may justify” abridging
other First Amendment freedoms. See
Good News Club
v.
Milford Central School
, 533 U. S. 98, 112 (2001);
Lamb’s
Chapel
v.
Center Moriches Union Free School Dist.
, 508
U. S. 384, 394 (1993);
Widmar
v.
Vincent
,
Finally, this Court’s infamous test in
Lemon
v.
Kurtzman
,
403 U. S. 602 (1971), has sometimes been understood to
prohibit governmental practices that have the effect of en-
dorsing religion. See
Lynch
v.
Donnelly
,
T HOMAS , J., concurring
a prayer violated the Establishment Clause); see also
Ken-
nedy
v.
Bremerton School Dist.
, 869 F. 3d 813, 831 (CA9
2017) (M. Smith, J., concurring) (coach’s decision to lead
voluntary prayer after football games);
Walz Egg Harbor
Twp. Bd. of Ed.
,
II
The Court’s current understanding of the Establishment Clause actually thwarts, rather than promotes, equal treat- ment of religion. Under a proper understanding of the Es- tablishment Clause, robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level. The Court’s distorted view of the Establishment Clause, however, removes the entire subject of religion from the realm of permissible governmental ac- tivity, instead mandating strict separation.
This interpretation of the Establishment Clause operates as a type of content-based restriction on the government. The Court has interpreted the Free Speech Clause to pro- hibit content-based restrictions because they “value some forms of speech over others,” City of Ladue v. Gilleo , 512 U. S. 43, 60 (1994) (O’Connor, J., concurring), thus tending to “tilt public debate in a preferred direction,” Sorrell IMS Health Inc. , 564 U. S. 552, 578–579 (2011). The content- based restriction imposed by this Court’s Establishment Clause jurisprudence operates no differently. It communi- cates a message that religion is dangerous and in need of policing, which in turn has the effect of tilting society in fa- vor of devaluing religion.
Historical evidence suggests that many advocates for this separationist view were originally motivated by hostility to- ward certain disfavored religions. See P. Hamburger, Sep- aration of Church and State 391–454 (2002). And this Court’s adoption of a separationist interpretation has itself
T HOMAS , J., concurring
sometimes bordered on religious hostility. Justice Black,
well known for his role in formulating the Court’s modern
Establishment Clause jurisprudence, once described Cath-
olic petitioners as “powerful sectarian religious propagan-
dists” “looking toward complete domination and suprem-
acy” of their “preferences and prejudices.”
Board of Ed. of
Central School Dist. No. 1
v.
Allen
,
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 , 540
T HOMAS , J., concurring
U. S., at 733 (Scalia, J., dissenting). They are evident in the
fact that, unlike other constitutional rights, the mere expo-
sure to religion can render an “ ‘offended observer’ ” suffi-
ciently injured to bring suit against the government,
Amer-
ican Legion
,
* * *
As I have recently explained, this Court has an unfortu- nate tendency to prefer certain constitutional rights over others. See United States v. Sineneng-Smith , ante , at 6 ——————
[2] This stands in striking contrast to the Court’s view in the free speech
context that “the burden normally falls upon the viewer” to avoid offense
“simply by averting his eyes.”
Hill Colorado
,
T HOMAS , J., concurring
(T HOMAS , J., concurring). The Free Exercise Clause, alt- hough 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 dispar- ate 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.
A LITO , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 18–1195 _________________ KENDRA ESPINOZA, ET AL ., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, ET AL . ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA [June 30, 2020] J USTICE A LITO , concurring.
I join the opinion of the Court in full. The basis of the decision below was a Montana constitutional provision that, according to the Montana Supreme Court, forbids par- ents from participating in a publicly funded scholarship program simply because they send their children to reli- gious schools. Regardless of the motivation for this provi- sion or its predecessor, its application here violates the Free Exercise Clause.
Nevertheless, the provision’s origin is relevant under the
decision we issued earlier this Term in
Ramos Louisiana
,
I argued in dissent that this original motivation, though deplorable, had no bearing on the laws’ constitutionality be- cause such laws can be adopted for non-discriminatory rea- sons, and “both States readopted their rules under different
A LITO , J., concurring
circumstances in later years.” Id. , at ___ (slip op., at 3). But I lost, and Ramos is now precedent. If the original motiva- tion for the laws mattered there, it certainly matters here.
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 . See Brief for Petitioners 31–45; Brief for United States as Amicus Curiae 1–2, 25; Brief for Center for Constitutional Jurisprudence as Amicus Curiae 10–12; Brief for Pioneer Institute, Inc., as Amicus Curiae 5–17; Brief for Cato Institute as Amicus Cu- riae 2; Brief for State of Oklahoma et al. as Amici Curiae 16; Brief for Montana Catholic School Parents et al. as Amici Curiae 21–25; Brief for Senator Steve Daines et al. as Amici Curiae 1–27 (Sen. Daines Brief ); Brief for Becket Fund for Religious Liberty as Amicus Curiae 4–20 (Becket Fund Brief ); Brief for the Rutherford Institute as Amicus Curiae 2–10; Brief for Georgia Goal Scholarship Program, Inc., as Amicus Curiae 1–5, 16–21; Brief for Liberty Justice Center et al. as Amici Curiae 16–17; Brief for Alliance for Choice in Education as Amicus Curiae 4–8; Brief for Inde- pendence Institute as Amicus Curiae 4–26 (Independence Institute Brief ); Brief for Jewish Coalition for Religious Liberty as Amicus Curiae 1–5; Brief for Rusty Bowers et al. as Amici Curiae 8–9; Brief for Center for Education Reform et al. as Amici Curiae 21–27 (CER Brief ); Brief for Montana Family Foundation as Amicus Curiae 9–13; Brief for Ari- zona Christian School Tuition Organization et al. as Amici Curiae 14–22; Brief for Justice and Freedom Fund et al. as Amici Curiae 22–23; Brief for 131 Current and Former State Legislators as Amici Curiae 2–10.
These briefs, most of which were not filed by organiza- tions 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 Congress- man who introduced it in 1875, the amendment was *37 3
A LITO , J., concurring
prompted by virulent prejudice against immigrants, partic-
ularly Catholic immigrants. In effect, the amendment
would have “bar[red] any aid” to Catholic and other “sec-
tarian” schools.
Mitchell
v.
Helms
,
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. See 4 Cong. Rec. 5191–5192 (1876) (House vote); id. , at 5595 (28 yeas, 16 nays in the Senate). Afterwards, most States adopted provisions like Montana’s to achieve the same ob- jective at the state level, often as a condition of entering the Union. Thirty-eight States still have these “little Blaine Amendments” today. See App. D to Brief for Respondents.
This history is well-known and has been recognized in
opinions of this Court. See,
e.g.
,
Locke
v.
Davey
, 540 U. S.
712, 723, n. 7 (2004);
Mitchell
,
A wave of immigration in the mid-19th century, spurred in part by potato blights in Ireland and Germany, signifi- cantly increased this country’s Catholic population. [2] Nativ- ist fears increased with it. An entire political party, the Know Nothings, formed in the 1850s “to decrease the polit- ——————
[1] See U. S. Commission on Civil Rights, School Choice: The Blaine Amendments & Anti-Catholicism 36 (2007).
[2] See T. Anbinder, Nativism and Slavery: The Northern Know Noth- ings and the Politics of the 1850s, pp. 6–8 (1992).
4
A LITO , J., concurring
ical influence of immigrants and Catholics,” gaining hun- dreds 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,” [4] who “would attempt to subvert representative gov- ernment.” [5] Catholic education was a particular concern. As one series of newspaper articles argued, “ ‘Popery is the nat- ural enemy of general education. . . . If it is establishing schools, it is to make them prisons of the youthful intellect of the country.’ ” C. Glenn, The Myth of the Common School 69 (1988) (Glenn) (quoting S. Morse, Foreign Conspiracy Against the Liberties of the United States (1835)). With a Catholic school breaking ground in New York City, the New York Times ran an article titled “Sectarian Education. Anti-Public School Crusade. Aggressive Attitude of the Ro- man Catholic Clergy—The Terrors of the Church Threat- ened.” N. Y. Times, Aug. 24, 1873, p. 8. The project, the article concluded, would cause “intense anxiety by all who are interested in upholding the admirable system of public school education.” Ibid .
The feelings of the day are perhaps best encapsulated by this famous cartoon, published in Harper’s Weekly in 1871, which depicts Catholic priests as crocodiles slithering hun- grily toward American children as a public school crumbles in the background:
——————
[3] Id. , at 127–128, 135.
[4] Id. , at 110 (emphasis deleted).
[5] P. Hamburger, Separation of Church and State 206 (2002).
A LITO , J., concurring
The resulting wave of state laws withholding public aid from “sectarian” schools cannot be understood outside this context. Indeed, there are stronger reasons for considering original motivations here than in Ramos because, unlike the neutral language of Louisiana’s and Oregon’s non- unanimity rules, Montana’s no-aid provision retains the bigoted code language used throughout state Blaine Amendments.
The failed Blaine Amendment would have prohibited any
public funds or lands devoted to schooling from “ever be[ing]
under the control of any religious sect.” 4 Cong. Rec. 205
(1875). As originally adopted, Montana’s Constitution pro-
hibited the state and local governments from “ever
mak[ing,] directly or indirectly, any appropriation” for “any
sectarian purpose” or “to aid in the support of any school . . .
controlled in whole or in part by any church, sect or denom-
ination whatever.” Mont. Const., Art. XI, §8 (1889). At the
time, “it was an open secret that ‘sectarian’ was code for
‘Catholic.’ ”
Mitchell
,
A LITO , J., concurring
in religion which has separated itself from the established church, or which holds tenets different from those of the prevailing denomination in a kingdom or state”—a heretic. N. Webster, An American Dictionary of the English Lan- guage (1828); see also Independence Institute Brief 9–16 (collecting several similar definitions). Newspapers throughout the country, including in Montana, used the word in similarly pejorative fashion. See id., at 17–26 (col- lecting several articles). The term was likewise used against Mormons and Jews. [6]
Backers of the Blaine Amendment either held nativist views or capitalized on them. When Blaine introduced the amendment, The Nation reported that it was “a Constitu- tional amendment directed against the Catholics”—while surmising that Blaine, whose Presidential ambitions were known, sought “to use it in the campaign to catch anti- Catholic votes.” [7] The amendment had its intended galva- nizing effect. “Its popularity was so great” that “even con- gressional Democrats,” who depended on Catholic votes, “were expected to support it,” and the congressional floor debates were rife with anti-Catholic sentiment, including “a tirade against Pope Pius IX.”
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. See Sen. Daines Brief 10–13. The Act enabling Montana to become a State required “[t]hat provi- sion shall be made for the establishment and maintenance ——————
[6] See Natelson, Why Nineteenth Century Bans on “Sectarian” Aid Are Facially Unconstitutional: New Evidence on Plain Meaning, 19 Federal- ist Soc. Rev. 98, 104 (2018).
[7] Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 54 (1992) (quoting article; internal quotation marks omitted).
[8] DeForrest, An Overview and Evaluation of State Blaine Amend- ments: Origins, Scope, and First Amendment Concerns, 26 Harv. J. L. & Pub. Pol’y 551, 566, 570 (2003); see also, e.g. , Becket Fund Brief 5–11. *41 7
A LITO , J., concurring
of systems of public schools . . . free from sectarian control.” Act of Feb. 22, 1889, §4, 25 Stat. 677; see also Becket Fund Brief 17–18 (quoting one Senator’s description of the Act as “ ‘completing the unfinished work of the failed Blaine Amendment’ ”). Montana thereafter adopted its constitu- tional rule against public funding for any school “con- trolled” 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, see Brief for Petitioners 42, and n. 41, and anti-Catholicism was alive in Montana too. See, e.g. , Sen. Daines Brief 1–3 (describing a riot over an anti-Catholic sign hung over a Butte saloon on Independence Day, 1894).
Respondents argue that Montana’s no-aid provision merely reflects a state interest in “preserv[ing] funding for public schools,” Brief for Respondents 7, known as “common schools” during the Blaine era. Yet just as one cannot sep- arate the Blaine Amendment from its context, “[o]ne cannot separate the founding of the American common school and the strong nativist movement.”
Spearheaded by Horace Mann, Secretary of the Massa- chusetts Board of Education from 1837 to 1848, the common-school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly diffi- cult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of “least-common- denominator Protestantism.” [10] This was accomplished with ——————
[9] Viteritti, Blaine’s Wake: School Choice, the First Amendment, and State Constitutional Law, 21 Harv. J. L. & Pub. Pol’y 657, 667 (1998) (Viteritti, Blaine’s Wake).
[10] Jeffries & Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 298 (2001) (Jeffries & Ryan); see also, e.g. , CER Brief 23–26.
8
A LITO , J., concurring
daily reading from the King James Bible, a curriculum that, Mann said, let the book “speak for itself.” 4 Life and Works of Horace Mann 312 (1891) (Mann’s 12th annual report on the Massachusetts schools; emphasis deleted). Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians.
Mann’s goal was to “Americanize” the incoming Catholic immigrants. In fact, he and other proponents of the common-school movement used language and made insinu- ations that today would be considered far more inflamma- tory. In his 10th annual report on the Massachusetts schools, Mann described the State as “parental,” assuming the responsibility of weaning children “[f ]or the support of the poor, nine-tenths of whose cost originate with foreigners or come from one prolific vice,” meaning alcohol. 4 Life and Works of Horace Mann, at 132, 134 (emphasis deleted). In other writing, he described the common-school movement as “ ‘laboring to elevate mankind into the upper and purer regions of civilization, Christianity, and the worship of the true God; all those who are obstructing the progress of this cause are impelling the race backwards into barbarism and idolatry.’ ” Glenn 171–172 (quoting an 1846 article by Mann in the Common School Journal).
These “obstructers” were Catholic and other religious groups and families who objected to the common schools’ religious programming, which, as just seen, was not neutral on matters of religion. Objections met violent response. In Massachusetts and elsewhere, Catholic students were beaten and expelled for refusing to read from the King James Bible. [12] In New York, a mob destroyed the residence of Bishop John Hughes, who had argued that, if the State ——————
[11] See Glenn 166; Lain, God, Civic Virtue, and the American Way: Re- constructing Engel , 67 Stan. L. Rev. 479, 487–488 (2015).
[12] See Jeffries & Ryan 300. *43 9
A LITO , J., concurring
was going to fund religious public education, it should also support church schools. The militia needed to be called to protect St. Patrick’s Cathedral. [13] Most notorious were the Philadelphia Bible Riots. In 1844, a rumor circulated in the city’s nativist newspapers that a school director, who was Catholic, had ordered that Bible reading be stopped. [14] Months of scaremongering broke out into riots that left two of the city’s Catholic churches burned and several people dead. Only by calling out the militia and positioning a can- non in front of a Catholic church—which itself had been taking cannon fire—were the riots ultimately quelled. [15]
Catholic and Jewish schools sprang up because the com- mon schools were not neutral on matters of religion. “Faced with public schools that were culturally Protestant and with curriculum[s] and textbooks that were, consequently, rife with material that Catholics and Jews found offensive, many Catholics and Orthodox Jews created separate schools,” and those “who could afford to do so sent their chil- dren to” those schools.
But schools require significant funding, and when reli- gious organizations requested state assistance, Mann and others labeled them “sectarian”—that is, people who had separated from the prevailing orthodoxy. See, e.g. , Jeffries & Ryan 298, 301. The Blaine movement quickly followed. ——————
[13] See Viteritti, Choosing Equality: School Choice, the Constitution, and Civil Society 151 (1999).
[14] See Sekulow & Tedesco, The Story Behind Vidal v. Girard ’s Execu- tors: Joseph Story, the Philadelphia Bible Riots, and Religious Liberty, 32 Pepperdine L. Rev. 605, 630 (2005).
[15] See id. , at 633–638.
[16] Brief for Union of Orthodox Jewish Congregations of America as Amicus Curiae in Trinity Lutheran Church of Columbia, Inc. v. Comer , O. T. 2016, No. 15–577, p. 15 (internal quotation marks, citation, and brackets omitted). *44 v.
A LITO , J., concurring
In 1854, the Know Nothing party, in many ways a forerun- ner of the Ku Klux Klan, [17] took control of the legislature in Mann’s State of Massachusetts and championed one of the first constitutional bans on aid to “sectarian” schools (along with attempting to limit the franchise to native-born peo- ple). See Viteritti, Blaine’s Wake 669–670.
Respondents and one dissent argue that Montana’s no-
aid provision was cleansed of its bigoted past because it was
readopted for non-bigoted reasons in Montana’s 1972 con-
stitutional convention. See
post
, at 4–5, n. 2 (opinion of
S OTOMAYOR , J.); see also Brief for Respondents 18; Tr. of
Oral Arg. 22–23. They emphasize that the convention in-
cluded Catholics, just as the constitutional convention that
readopted Louisiana’s purportedly racist non-unanimous
jury provision included black delegates. As noted, a virtu-
ally identical argument was rejected in
Ramos
, even though
“ ‘no mention was made of race’ ” during the Louisiana con-
vention debates. 590 U. S., at ___ (A LITO , J., dissenting)
(slip op., at 3) (quoting
State Hankton
, 2012–0375, p. 19
(La. App. 4 Cir. 8/2/13),
Delegates at Montana’s constitutional convention in 1972 acknowledged that the no-aid provision was “a badge of big- otry,” with one Catholic delegate recalling “being let out of school in the fourth grade to erase three ‘Ks’ on the front doors of the Catholic church in Billings.” [18] Nevertheless the ——————
[17] See generally Myers, Know Nothing and Ku Klux Klan, 219 North American Rev. 1 (Jan. 1924).
[18] 6 Montana Constitutional Convention 1971–1972, Proceedings and
A LITO , J., concurring
convention proposed, and the State adopted, a provision with the same material language, prohibiting public aid “for any sectarian purpose or to aid any . . . school . . . controlled in whole or in part by any church, sect , or denomination.” Mont. Const., Art. X, §6(1) (1972) (emphasis added). A lead- ing definition of “sect” at the time, as during the Blaine era, was “a dissenting religious body; esp: one that is heretical in the eyes of other members within the same communion .” Webster’s Third New International Dictionary 2052 (1971) (emphasis added).
Given the history above, the terms “sect” and “sectarian”
are disquieting remnants. And once again, there appears
to have been little doubt which schools this provision would
predominantly affect. In 1970, according to the National
Center for Educational Statistics, Montana had 61 reli-
giously affiliated schools. Forty-five were Roman Catho-
lic.
[19]
Not only did the convention delegates acknowledge
the no-aid provision’s original anti-Catholic intent, but the
Montana Supreme Court had only ever applied the provi-
sion once—to a Catholic school, and one that had “carrie[d]
a sizeable portion of the total educational load” in Ana-
conda, Montana.
State ex rel. Chambers School Dist. No.
10 of Deer Lodge Cty.
,
Transcript, p. 2012 (Mont. Legislature and Legislative Council) (Conven- tion Tr.) (statement of Delegate Schiltz); see also, e.g. , id., at 2010 (state- ment of Delegate Harbaugh) (recognizing the provision as a Blaine Amendment, which “espoused the purpose of the Know-nothing Party”); id. , at 2011 (statement of Delegate Toole) (recognizing the provision as a Blaine Amendment); id. , at 2013 (statement of Chairman Graybill) (same); id. , at 2027 (statement of Delegate Campbell) (same); id. , at 2030 (statement of Delegate Champoux) (same).
[19] See Nat. Center for Educational Statistics, Statistics of Nonpublic Elementary and Secondary Schools 1970–71, pp. 32–33 (1973) (Table 1). *46 12
A LITO , J., concurring
2010, 2027. That amendment was rejected.
Thus, the no-aid provision’s terms keep it “[t]ethered” to
its original “bias,” and it is not clear at all that the State
“actually confront[ed]” the provision’s “tawdry past in reen-
acting it.”
Ramos
,
Today’s public schools are quite different from those en- visioned by Horace Mann, but many parents of many differ- ent faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. Many have turned to religious schools, at considerable ex- pense, or have undertaken the burden of homeschooling. The tax-credit program adopted by the Montana Legisla- ——————
[20] Ala. Const., Art. XIV, §263 (1901); Ariz. Const., Art. II, §12, Art. IX, §10 (1912); Colo. Const., Art. V, §34, Art. IX, §7 (1876); Del. Const., Art. X, §3 (1897); Ind. Const., Art. I, §6 (1851); Ky. Const. §189 (1891); Miss. Const., Art. 8, §208 (1890); Nev. Const., Art. XI, §10 (1880); N. H. Const., Pt. II, Art. 83 (1877); N. M. Const., Art. XII, §3 (1911); N. D. Const., Art. VIII, §152 (1889); Ohio Const., Art. VI, §2 (1851); Okla. Const., Art. II, §5 (1907); Ore. Const., Art. I, §5 (1857); S. D. Const., Art. VIII, §16 (1889); Wis. Const., Art. I, §18, Art. X, §3 (1848); Wyo. Const., Art. I, §19, Art. VII, §8 (1889).
A LITO , J., concurring
ture but overturned by the Montana Supreme Court pro- vided 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 sar- donic remark that “ ‘[t]he law, in its majestic equality, for- bids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ ” J. Cournos, A Mod- ern Plutarch 35 (1928).
G ORSUCH , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 18–1195 _________________ KENDRA ESPINOZA, ET AL ., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, ET AL . ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA [June 30, 2020] J USTICE G ORSUCH , concurring.
The people of Montana, acting through their legislature, adopted a school choice program. It provided a modest tax credit to individuals and businesses who donated to non- profit scholarship organizations. As the program began to take root, Montana had just one scholarship organization. It granted scholarships to families who were struggling fi- nancially or had children with disabilities. Recipients were free to use the scholarships at the schools of their choice. Some families chose secular schools, others religious ones.
Kendra Espinoza, the lead petitioner in this case, is a sin- gle mother who works three jobs. She planned to use schol- arships to help keep her daughters at an accredited reli- gious school. That is, until the Montana Supreme Court struck down the tax credit program. Those seeking a tax credit were free to choose whether to direct their donations to the independent scholarship organization; the organiza- tion was then free to choose scholarship recipients; and, af- ter that, parents were free to choose where to use those scholarships. But, the Montana Supreme Court held, this arrangement impermissibly allowed state funds to find their way to religious schools, in violation of a state consti- tutional provision. By way of remedy, the court ordered an end to the tax credit program, effectively killing Montana’s school choice experiment: Without tax credits, donations
G ORSUCH , J., concurring
dry up, and so do the scholarships enabling school choice.
Today, the Court explains how the Montana Constitu- tion, as interpreted by the State Supreme Court, violates the First Amendment by discriminating against parents and schools based on their religious status or identity. The Court explains, too, why the State Supreme Court’s deci- sion to eliminate the tax credit program fails to mask the discrimination. But for the Montana Constitution’s imper- missible discrimination, after all, the legislature’s tax credit and scholarship program would be still operating for the benefit of Ms. Espinoza and everyone else. I agree with all the Court says on these scores and join its opinion in full. I write separately only to address an additional point.
The Court characterizes the Montana Constitution as discriminating against parents and schools based on “reli- gious status and not religious use.” Ante, at 10. No doubt, the Court proceeds as it does to underscore how the outcome of this case follows from Trinity Lutheran Church of Colum- bia, Inc. v. Comer , 582 U. S. ___ (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 char- acterizing the State’s discrimination here that way. See id., at ___–___ (slip op., at 1–2) (G ORSUCH , J., concurring in part).
In the first place, discussion of religious activity, uses, and conduct—not just status—pervades this record. The Montana Constitution forbids the use of public funds “for any sectarian purpose,” including to “aid” sectarian schools. Art. X, §6(1). Tracking this directive, the State Supreme Court reasoned that the legislature’s tax credit program
G ORSUCH , J., concurring
could be used to “subsidiz[e] the sectarian school’s educa-
tional program” and thereby “strengthen . . . religious edu-
cation.”
Not only is the record replete with discussion of activities, uses, and conduct, any 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 sta- tus-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. See Trinity Lutheran , 582 U. S., at ___–___ (slip op., at 1–2) (opinion of G ORSUCH , J.).
Most importantly, though, it is not as if the First Amend- ment 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. At the time of the First Amend- ment’s adoption, the word “exercise” meant (much as it means today) some “[l]abour of the body,” a “[u]se,” as in the “actual application of any thing,” or a “[p]ractice,” as in some “outward performance.” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773); see also ibid. (5th ed. 1784). By speaking of a right to “free exercise,” rather than
G ORSUCH , J., concurring
a right “of conscience,” an alternative the framers consid- ered and rejected, our Constitution “extended the broader freedom of action to all believers.” McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1490 (1989). So whether the Mon- tana Constitution is better described as discriminating against religious status or use makes no difference: It is a violation of the right to free exercise either way, unless the State can show its law serves some compelling and nar- rowly tailored governmental interest, conditions absent here for reasons the Court thoroughly explains.
Our cases have long recognized the importance of protect- ing religious actions, not just religious status. In its very first decision applying the Free Exercise Clause to the States, the Court explained that the First Amendment pro- tects the “freedom to act” as well as the “freedom to believe.” Cantwell v. Connecticut , 310 U. S. 296, 303 (1940). The Court then reversed a criminal conviction against Newton Cantwell and his sons, Jehovah’s Witnesses who were pros- ecuted not because of who they were but because of what they did—proselytize door-to-door without a license. See id. , at 300–301, 307, 311. In fact, this Court has already recognized that parents’ decisions about the education of their children—the very conduct at issue here—can consti- tute protected religious activity. In Wisconsin Yoder , 406 U. S. 205 (1972), the Court held that Amish parents could not be compelled to send their children to a public high school if doing so would conflict with the dictates of their faith. See id ., at 214–215, 220, 234–235.
Even cases that seemingly focus on religious status do so
with equal respect for religious actions. In
McDaniel
v.
Paty
,
G ORSUCH , J., concurring
U. S., at ___ (slip op., at 7) (quoting
McDaniel
, 435 U. S., at
627) (emphasis deleted). But no one can question that con-
duct lurked just beneath the surface. After all, the State
identified clergy based on their “conduct and activity,” and
the plurality opinion concluded that the State’s prohibition
was based on “status, acts, and conduct.”
Consistently, too, we have recognized the First Amend-
ment’s protection for religious conduct in public benefits
cases. When the government chooses to offer scholarships,
unemployment benefits, or other affirmative assistance to
its citizens, those benefits necessarily affect the “baseline
against which burdens on religion are measured.”
Locke
v.
Davey
,
Our cases illustrate the point. In
Sherbert Verner
, 374
U. S. 398 (1963), for example, a State denied unemploy-
ment benefits to Adell Sherbert not because she was a Sev-
enth Day Adventist but because she had put her faith into
practice by refusing to labor on the day she believed God
had set aside for rest. See
id.
, at 399–401. Recognizing her
right to exercise her religion freely, the Court held that Ms.
Sherbert was entitled to benefits. See
id.
, at 410. Similarly,
in
Thomas Review Bd. of Ind. Employment Security Div.
,
G ORSUCH , J., concurring
the right to resign from his job and still collect an unem- ployment check after he decided he could not assemble mil- itary tank turrets consistent with the teachings of his faith. See id ., at 709–712, 720. In terms that speak equally to our case, the Court explained that the government tests the Free Exercise Clause whenever it “conditions receipt of an important benefit upon conduct proscribed by a religious faith, or . . . denies such a benefit because of conduct man- dated by religious belief, thereby putting substantial pres- sure on an adherent to modify his behavior and to violate his beliefs.” Id. , at 717–718.
The First Amendment protects religious uses and actions for good reason. 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 cal- endar? Often, governments lack effective ways to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all.
If the government could intrude so much in matters of faith, too, winners and losers would soon emerge. Those apathetic about religion or passive in its practice would suf- fer little in a world where only inward belief or status is protected. But what about those with a deep faith that re- quires them to do things passing legislative majorities might find unseemly or uncouth—like knocking on doors to spread their beliefs, refusing to build tank turrets during wartime, or teaching their children at home? “[T]hose who take their religion seriously, who think that their religion should affect the whole of their lives,” and those whose re- ligious beliefs and practices are least popular, would face
G ORSUCH , J., concurring
the greatest disabilities.
Mitchell
v.
Helms
,
It doesn’t take a long or searching look through history or around the world to see how this can go. In the century before our Nation’s founding, Oliver Cromwell promised to Catholics in Ireland: “ ‘As to freedom of conscience, I med- dle with no man’s conscience; but if you mean by that, lib- erty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of Eng- land prevails shall that be permitted.’ ” McDaniel , 435 U. S., at 631, n. 2 (opinion of Brennan, J.) (quoting S. Hook, Paradoxes of Freedom 23 (1962)); see also 1 T. Carlyle, Oli- ver Cromwell’s Letters and Speeches 395 (1845) (recording Cromwell’s October 19, 1649, letter to the Governor of Ross). Even today, in fiefdoms small and large, people of faith are made to choose between receiving the protection of the State and living lives true to their religious convic- tions.
Of course, in public benefits cases like the one before us
the stakes are not so dramatic. Individuals are forced only
to choose between forgoing state aid or pursuing some as-
pect of their faith. The government does not put a gun to
the head, only a thumb on the scale. But, as so many of our
cases explain, the Free Exercise Clause doesn’t easily toler-
ate either; any discrimination against religious exercise
must meet the demands of strict scrutiny. In this way, the
Clause seeks to ensure that religion remains “a matter of
voluntary choice by individuals and their associations,
[where] each sect ‘ flourish[es] according to the zeal of its
adherents and the appeal of its dogma,’ ” influenced by nei-
ther where the government points its gun nor where it
places its thumb.
McDaniel
,
G ORSUCH , J., concurring
Montana’s Supreme Court disregarded these founda- tional principles. Effectively, the court told the state legis- lature 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 discrimina- tion on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.
G INSBURG SUPREME COURT OF THE UNITED STATES
_________________ No. 18–1195 _________________ KENDRA ESPINOZA, ET AL ., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, ET AL . ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA [June 30, 2020] J USTICE G INSBURG , with whom J USTICE K AGAN joins, dissenting.
The Montana Legislature enacted a scholarship program to fund tuition for students attending private secondary schools. See Mont. Code Ann. §15–30–3111 (2019). In the decision below, the Montana Supreme Court struck down that program in its entirety. The program, the state court ruled, conflicted with the State Constitution’s no-aid provi- sion, which forbids government appropriations to religious schools. Mont. Const., Art. X, §6(1). Parents who sought to use the program’s scholarships to fund their children’s reli- gious education challenged the state court’s ruling. They argue in this Court that the Montana court’s application of the no-aid provision violated the Free Exercise Clause of the Federal Constitution. Importantly, the parents, peti- tioners here, disclaim any challenge to the no-aid provision on its face. They instead argue—and this Court’s majority accepts—that the provision is unconstitutional as applied because the First Amendment prohibits discrimination in tuition-benefit programs based on a school’s religious sta- tus. Because the state court’s decision does not so discrim- inate, I would reject petitioners’ free exercise claim.
The First Amendment prohibits the government from “mak[ing a] law . . . prohibiting the free exercise” of religion. *57 v.
G INSBURG U. S. Const., Amdt. 1. This Court’s decisions have recog-
nized that a burden on religious exercise may occur both
when a State proscribes religiously motivated activity and
when a law pressures an adherent to abandon her religious
faith or practice.
Sherbert
v.
Verner
, 374 U. S. 398, 406
(1963);
Hobbie
v.
Unemployment Appeals Comm’n of Fla.
,
Petitioners argue that the Montana Supreme Court’s de- cision fails when measured against Trinity Lutheran . I do not see how. Past decisions in this area have entailed dif- ferential treatment occasioning a burden on a plaintiff ’s re- ligious exercise. Lyng , 485 U. S., at 450–451; Trinity Lu- theran , 582 U. S., at ___ (slip op., at 11). 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 bene- fits, so the decision cannot be said to entail differential treatment based on petitioners’ religion. Put somewhat dif- ferently, petitioners argue that the Free Exercise Clause re- quires a State to treat institutions and people neutrally when doling out a benefit—and neutrally is how Montana
G INSBURG treats them in the wake of the state court’s decision.
Accordingly, the Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise. Peti- tioners may still send their children to a religious school. And the Montana Supreme Court’s decision does not pres- sure them to do otherwise. Unlike the law in Trinity Lu- theran , the decision below puts petitioners to no “choice”: Neither giving up their faith, nor declining to send their children to sectarian schools, would affect their entitlement to scholarship funding. 582 U. S., at ___ (slip op., at 10). There simply are no scholarship funds to be had.
True, petitioners expected to be eligible for scholarships
under the legislature’s program, and to use those scholar-
ships at a religious school. And true, the Montana court’s
decision disappointed those expectations along with those
of parents who send their children to secular private
schools. But, as J USTICE S OTOMAYOR observes, see
post,
at
3 (dissenting opinion), this Court has consistently refused
to treat neutral government action as unconstitutional
solely because it fails to benefit religious exercise. See
Sherbert
,
These considerations should be fatal to petitioners’ free
exercise claim, yet the Court does not confront them. In-
stead, the Court decides a question that, in my view, this
case does not present: “[W]hether excluding religious
schools and affected families from [the scholarship] pro-
gram was consistent with the Federal Constitution.”
Ante
,
at 7 (majority opinion). The Court goes on to hold that the
Montana Supreme Court’s application of the no-aid provi-
sion violates the Free Exercise Clause because it “ ‘condi-
tion[s] the availability of benefits upon a recipient’s willing-
ness to surrender [its] religiously impelled status.’ ”
Ante
,
at 11 (quoting
Trinity Lutheran
,
G INSBURG op., at 9–10); alterations in original). As I see it, the deci- sion below—which maintained neutrality between sec- tarian and nonsectarian private schools—did no such thing.
Finding the “beginning” of the Montana Supreme Court’s
decision erroneous, this Court regards the state court’s ul-
timate judgment as irrelevant.
Ante,
at 20–22. In the
Court’s recounting, the Montana court first held that reli-
gious schools must be excluded from the scholarship pro-
gram—necessarily determining that the Free Exercise
Clause permitted that result—and only subsequently
struck the entire program as a way of carrying out its hold-
ing. See
ante,
at 21 (“When the [Montana Supreme] Court
was called upon to apply a state law no-aid provision to ex-
clude religious schools from the program, it was obligated
by the Federal Constitution to reject the invitation.”). But
the initial step described by this Court is imaginary. The
Montana court determined that the scholarship program vi-
olated the no-aid provision because it resulted in aid to re-
ligious schools. Declining to rewrite the statute to exclude
those schools, the state court struck the program in full.
Thus, contrary to this Court’s assertion, see ante, at 21, the no-aid provision did not require the Montana Supreme ——————
[1] In its opinion, Montana’s highest court stated without explanation that this case is not one in which application of the no-aid provision vio- lates the Free Exercise Clause. 393 Mont., at 468, 435 P. 3d, at 614. When the court made that statement, it had already invalidated the en- tire scholarship program. Ibid. Accordingly, the court’s statement can- not be understood to have approved of excluding religious schools from an otherwise available scholarship. Instead, the statement is most fairly read to convey that the Free Exercise Clause allows a State to decline to fund any private schools, an outcome that avoids state aid to religious schools.
G INSBURG Court to “exclude” religious schools from the scholarship program. The provision mandated only that the state treas- ury not be used to fund religious schooling. As this case demonstrates, that mandate does not necessarily require differential treatment. The no-aid provision can be imple- mented in two ways. A State may distinguish within a ben- efit program between secular and sectarian schools, or it may decline to fund all private schools. The Court agrees that the First Amendment permits the latter course. See ante, at 20. Because that is the path the Montana Supreme Court took in this case, there was no reason for this Court to address the alternative.
By urging that it is impossible to apply the no-aid provi- sion in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitu- tional. See ante, at 21. Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no- aid provision divorced from its application to a specific gov- ernment benefit. See, e.g ., Reply Brief 8, 20, 21–22. This Court therefore had no call to reach that issue. See Adams v. Robertson , 520 U. S. 83, 90 (1997) ( per curiam ) (“ ‘[I]t would be unseemly in our dual system of government’ to disturb the finality of state judgments on a federal ground that the state court did not have occasion to consider.” (quoting Webb v. Webb , 451 U. S. 493, 500 (1981))). The only question properly raised is whether application of the no-aid provision to bar all state-sponsored private-school funding violates the Free Exercise Clause. For the reasons stated, supra, at 2–3, it does not.
Nearing the end of its opinion, the Court writes: “A State need not subsidize private education. But once a State de- cides to do so, it cannot disqualify some private schools solely because they are religious.” Ante , at 20. Because Montana’s Supreme Court did not make such a decision— its judgment put all private school parents in the same *61 6
G INSBURG 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.
——————
[2] The Montana Supreme Court’s decision leaves parents where they would be had the State never enacted a scholarship program. In that event, no one would argue that Montana was obliged to provide such a program solely for parents who send their children to religious schools. But cf. ante, at 13 (A LITO , J., concurring) (inapt reference to Anatole France’s remark).
B REYER SUPREME COURT OF THE UNITED STATES
_________________ No. 18–1195 _________________ KENDRA ESPINOZA, ET AL ., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, ET AL . ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA [June 30, 2020] J USTICE B REYER , with whom J USTICE K AGAN joins as to Part I, dissenting.
The First Amendment’s Free Exercise Clause guarantees the right to practice one’s religion. At the same time, its Establishment Clause forbids government support for reli- gion. Taken together, the Religion Clauses have helped our Nation avoid religiously based discord while securing lib- erty for those of all faiths.
This Court has long recognized that an overly rigid appli-
cation of the Clauses could bring their mandates into con-
flict and defeat their basic purpose. See,
e.g.
,
Walz
v.
Tax
Comm’n of City of New York
,
The majority barely acknowledges the play-in-the-joints *63 B REYER doctrine here. It holds that the Free Exercise Clause for- bids 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. The majority’s approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. I consequently dissent.
I
In 2015, Montana’s Legislature enacted a statute giving
a $150 tax credit to any person who contributes at least that
amount to an organization that provides scholarships for
students who attend non-public schools. See Mont. Code
Ann. §15–30–3111 (2019). The overwhelming majority of
these schools are religious. (In 2018, 94% of the scholar-
ships awarded helped to pay religious-school tuition. 393
Mont. 446, 466, 478–479, and n. 6,
Petitioners are the parents of students who attend one of Montana’s Christian private schools. They believe that the tenets of their faith require them to send their children to a religious school. And they claim that, by preventing them from using state-supported scholarships at those schools, the Montana Supreme Court’s interpretation of Montana’s Constitution violates their First Amendment right to free exercise. I shall assume, for purposes of this opinion, that petitioners’ free exercise claim survived the Montana Su- preme Court’s wholesale invalidation of the tax credit pro- gram. Cf. ante , at 2 (G INSBURG , J., dissenting); post , at 2– 3 (S OTOMAYOR , J., dissenting).
B REYER
A
We all recognize that the First Amendment prohibits dis-
crimination against religion. At the same time, our history
and federal constitutional precedent reflect a deep concern
that state funding for religious teaching, by stirring fears of
preference or in other ways, might fuel religious discord and
division and thereby threaten religious freedom itself. See,
e.g.
,
Committee for Public Ed. & Religious Liberty
v.
Nyquist
,
The inherent tension between the Establishment and
Free Exercise Clauses means, however, that the “course of
constitutional neutrality in this area cannot be an abso-
lutely straight line.”
Walz
,
That, in significant part, is why the Court has held that
“there is room for play in the joints” between the Clauses’
express prohibitions that is “productive of a benevolent neu-
trality,” allowing “religious exercise to exist without spon-
sorship and without interference.”
Ibid.
It has held that
there “are some state actions permitted by the Establish-
ment Clause but not required by the Free Exercise Clause.”
Locke
,
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,
B REYER “it cannot disqualify some private schools solely because they are religious.” Ante , at 20. I shall explain why I disa- gree.
B
As the majority acknowledges, two cases are particularly
relevant:
Trinity Lutheran Church of Columbia
,
Inc.
v.
Comer
,
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 re- main a religious institution.” Id. , at ___ (slip op., at 10). That kind of “ ‘indirect coercion,’ ” the Court explained, “im- poses a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Id. , at ___, ___ (slip op., at 10, 11). Finding that a State’s “policy preference for skating as far as possible from religious establishment concerns” could not satisfy that standard, the Court held that the Free Ex- ercise Clause required Missouri to include church-affiliated schools as candidates for playground renovation grants. Id. , at ___ (slip op., at 14).
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
B REYER pursue degrees that were “ ‘devotional in nature or designed
to induce religious belief.’ ”
The Court observed that the State’s decision not to fund devotional degrees did not penalize religious exercise or re- quire anyone to choose between their faith and a “govern- ment benefit.” Id. , at 721. Rather, the State had “merely chosen not to fund a distinct category of instruction” that was “essentially religious.” Ibid. Although Washington’s Constitution drew “a more stringent line than that drawn by the United States Constitution,” the Court found that the State’s position was consistent with the widely shared view, dating to the founding of the Republic, that taxpayer- supported religious indoctrination poses a threat to individ- ual liberty. Id. , at 722. Given this “historic and substantial state interest,” the Court concluded, it would be inappropri- ate to subject Washington’s law to a “presumption of uncon- stitutionality.” Id. , at 725. And, without such a presump- tion, the claim that the exclusion of devotional studies violated the Free Exercise Clause “must fail,” for “[i]f any room exists between the two Religion Clauses, it must be here.” Ibid. ; see id. , at 721, n. 3.
C
The majority finds that the school-playground case, Trin- ity Lutheran , and not the religious-studies case, Locke , con- trols 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 un- constitutional in Trinity Lutheran . Like the State of Wash- ington in Locke , Montana has chosen not to fund (at a dis- tance) “an essentially religious endeavor”—an education
B REYER designed to “ ‘induce religious faith.’ ” Locke , 540 U. S., at 716, 721. That kind of program simply cannot be likened to Missouri’s decision to exclude a church school from apply- ing for a grant to resurface its playground.
The Court in
Locke
recognized that the study of devo-
tional theology can be “akin to a religious calling as well as
an academic pursuit.”
Id.
, at 721. Indeed, “the shaping,
through primary education, of the next generation’s minds
and spirits” may be as critical as training for the ministry,
which itself, after all, is but one of the activities necessary
to help assure a religion’s survival.
Zelman
v.
Simmons-
Harris
,
Nothing in the Constitution discourages this type of in- struction. To the contrary, the Free Exercise Clause draws upon a history that places great value upon the freedom of parents to teach their children the tenets of their faith. Cf. Wisconsin v. Yoder , 406 U. S. 205, 213–214 (1972). The leading figures of America’s Enlightenment followed in the footsteps of those who, after the English civil wars, came to
B REYER believe “with a passionate conviction that they were enti-
tled to worship God in their own way and to teach their chil-
dren and to form their characters in the way that seemed
to them calculated to impress the stamp of the God-fearing
man.” C. Radcliffe, The Law & Its Compass 71 (1960). But
the bitter lesson of religious conflict also inspired the Es-
tablishment Clause and the state-law bans on compelled
support the Court cited in
Locke
. Cf.,
e.g.
, J. Madison, Me-
morial and Remonstrance Against Religious Assessments,
reprinted in
Everson Board of Ed. of Ewing
,
What, then, is the difference between
Locke
and the pre-
sent case? And what is it that leads the majority to con-
clude 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 argu-
ment appears to be that, as in
Trinity Lutheran
, Montana
has excluded religious schools from its program “solely be-
cause of the religious character of the schools.”
Ante
, at 9.
The majority seeks to contrast this
status
-based discrimi-
nation with the program at issue in
Locke
, which it says
denied scholarships to divinity students based on the reli-
gious
use
to which they put the funds—
i.e.
, training for the
ministry, as opposed to secular professions. See
ante
, at 11
(citing
Trinity Lutheran
,
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 discrimi- nation. The schools do not apply or compete for scholar- ships, 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
B REYER to prevent them from
using
taxpayer-supported scholar-
ships 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 edu-
cation.
Ante
, 13 (quoting
Trinity Lutheran
,
Even if the schools’ status were relevant, I do not see what bearing the majority’s distinction could have here. There is no dispute that religious schools seek generally to inspire religious faith and values in their students. How else could petitioners claim that barring them from using state aid to attend these schools violates their free exercise rights? Thus, the question in this case—unlike in Trinity Lutheran —boils down to what the schools would do with state support. And the upshot is that here, as in Locke , we confront a State’s decision not to fund the inculcation of re- ligious truths.
The majority next contends that there is no “ ‘historic and substantial’ tradition against aiding” religious schools “comparable to the tradition against state-supported clergy invoked by Locke .” Ante , at 16. But the majority ignores the reasons for the founding era bans that we relied upon in Locke .
“Perhaps the most famous example,”
Locke
, 540 U. S., at
722, n. 6, is the 1786 defeat of a Virginia bill (often called
the Assessment Bill) that would have levied a tax in sup-
port of “learned teachers” of “the Christian Religion.” A Bill
Establishing a Provision for Teachers of the Christian Reli-
gion, reprinted in
Everson
,
B REYER tax, Madison warned, the bill threatened to “destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced among its sev- eral sects.” Id. , at 69.
The opposition galvanized by Madison’s Remonstrance
not only scuttled the Assessment Bill; it spurred Virginia’s
Assembly to enact a very different law, the Bill for Religious
Liberty drafted by Thomas Jefferson. See Brant, Madison:
On the Separation of Church and State, 8 Wm. & Mary
Q. 3, 11 (1951); Drakeman, Religion and the Republic:
James Madison and the First Amendment, 25 J. Church &
St. 427, 436 (1983);
Everson
,
Like the Remonstrance, Jefferson’s bill emphasized the
risk to religious liberty that state-supported religious indoc-
trination threatened. “[T]o compel a man to furnish contri-
butions of money for the propagation of opinions which he
disbelieves,” the preamble declared, “is sinful and tyranni-
cal.” A Bill for Establishing Religious Freedom (1779), in 2
The Papers of Thomas Jefferson 545 (J. Boyd ed. 1950). The
statute accordingly provided “that no man shall be com-
pelled to frequent or support any religious worship, place,
or ministry whatsoever.”
Id.
, at 546. Similar proscriptions
were included in the early constitutions of many States.
See
Locke
,
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. In both instances state funds are sought for those
who would “instruc[t] such citizens, as from their circum-
stances and want of education, cannot otherwise attain
such knowledge” in the tenets of religious faith. A Bill Es-
tablishing a Provision for Teachers of the Christian Reli-
gion, reprinted in
Everson
,
B REYER Establishing Religious Freedom,
supra
, at 545. And, in
both cases, the allocation of state aid to such purposes
threatens to “destroy that moderation and harmony which
the forbearance of our laws to intermeddle with Religion,
has produced among its several sects.” Memorial and Re-
monstrance, reprinted in
Everson
,
The majority argues that at least some early American governments saw no contradiction between bans on com- pelled support for clergy and taxpayer support for religious schools or universities. See ante , at 14, n. 3. That some States appear not to have read their prohibitions on com- pelled support to bar this kind of sponsorship, however, does not require us to blind ourselves to the obvious contra- diction between the reasons for prohibiting compelled sup- port and the effect of taxpayer funding for religious educa- tion. Madison and Jefferson saw it clearly. They opposed including theological professorships in their plans for the public University of Virginia and the Commonwealth hesi- tated even to grant charters to religiously affiliated schools. See Buckley, After Disestablishment: Thomas Jefferson’s Wall of Separation in Antebellum Virginia, 61 J. So. Hist. 445, 453 (1995); Brant, supra, at 19–20.
As for the majority’s examples, it suffices to say that the record is not so simple. In Georgia, the Governor advocated for school funding legislation in terms that mirrored the language of Virginia’s Assessment Bill. See R. Gabel, Pub- lic Funds for Church and Private Schools 241–242 (1937). And the general levies the majority cites from Pennsylvania and New Jersey were not adopted until after the founding. See id., at 215–216; see C. Kaestle, Pillars of the Republic: Common Schools and American Society, 1780–1860, pp. 166–167 (1983).
That is not to deny that the history of state support for denominational schools is “ ‘complex.’ ” Ante , at 16. But founding era attitudes toward compelled support of clergy were no less complex. Many prominent members of the
B REYER founding generation, including George Washington, Patrick Henry, and John Marshall, supported Virginia’s Assess- ment Bill. See Dreisbach, George Mason’s Pursuit of Reli- gious Liberty in Revolutionary Virginia, 108 Va. Mag. Hist. & Biography 5, 31 (2000). Some who supported this kind of government aid thought it posed no threat to freedom of conscience; others denied that provisions for aid to religion amounted to an “establishment” at all. See id., at 34–35; D. Drakeman, Church, State, and Original Intent 224–225 (2010). Indeed, at least one historian has persuasively ar- gued that it is next to impossible to attribute to the Found- ers any uniform understanding as to what constitutes, in the Constitution’s phrase, “an Establishment of religion.” Id. , at 216–229, 260–262.
This diversity of opinion made no difference in
Locke
and
it makes no difference here. For our purposes it is enough
to say that, among those who gave shape to the young Re-
public were people, including Madison and Jefferson, who
perceived a grave threat to individual liberty and commu-
nal harmony in tax support for the teaching of religious
truths. These “historic and substantial” concerns have con-
sistently guided the Court’s application of the Religion
Clauses since.
Locke
,
Nor can I see how it could make a difference that the Es- tablishment Clause might permit the State to subsidize re- ligious education through a program like Montana’s. The
B REYER tax benefit here inures to donors, who choose to support a
particular scholarship organization. That organization, in
turn, awards scholarships to students for the qualifying
school of their choice. The majority points to cases in which
we have upheld programs where, as here, state funds make
their way to religious schools by means of private choices.
Ante
, at 7 (citing
Zelman
, 536 U. S., at 649–653). As the
Court acknowledged in
Trinity Lutheran
, however, that
does not answer the question whether providing such aid is
required
.
Neither does it address related concerns that I have pre-
viously described. Private choice cannot help the taxpayer
who does not want to finance the propagation of religious
beliefs, whether his own or someone else’s. It will not help
religious minorities too few in number to support a school
that teaches their beliefs. And it will not satisfy those
whose religious beliefs preclude them from participating in
a government-sponsored program. Some or many of the
persons who fit these descriptions may well feel ignored—
or worse—when public funds are channeled to religious
schools. See
Zelman
,
Indeed, the records of Montana’s constitutional conven- tion show that these concerns were among the reasons that a religiously diverse group of delegates, including faith leaders of different denominations, supported the no-aid provision. See Brief for Respondents 18–23; Brief for Mon- tana Constitutional Convention Delegates as Amici Curiae 19–21, 22, 24–25 (noting support for the provision from a
B REYER Congregationalist minister, the Roman Catholic priest re- sponsible for Catholic schools in the Diocese of Great Falls, a Methodist pastor, a Presbyterian minister, and the Mon- tana Catholic Conference, among others).
In an effort to downplay this risk and further distinguish
this case from
Locke
, the majority contends that “Montana’s
Constitution does not zero in on any particular ‘essentially
religious’ course of instruction.”
Ante
, at 13 (quoting
Locke
,
If, for 250 years, we have drawn a line at forcing taxpay- ers 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.
II
In reaching its conclusion that the Free Exercise Clause requires Montana to allow petitioners to use taxpayer- supported scholarships to pay for their children’s religious education, the majority makes several doctrinal innova- tions that, in my view, are misguided and threaten adverse consequences.
B REYER Although the majority refers in passing to the “play in the
joints” between that which the Establishment Clause for-
bids and that which the Free Exercise Clause requires, its
holding leaves that doctrine a shadow of its former self.
See,
e.g.
,
Cutter
,
Setting aside the problems with the majority’s character- ization of this case, supra , at 7–8, I think the majority is wrong to replace the flexible, context-specific approach of our precedents with a test of “strict” or “rigorous” scrutiny. And it is wrong to imply that courts should use that same heightened scrutiny whenever a government benefit is at issue. See ante , at 9, 11–12.
Experience has taught us that “we can only dimly per-
ceive the boundaries of permissible government activity in
this sensitive area of constitutional adjudication.”
Tilton
v.
Richardson
, 403 U. S. 672, 678 (1971) (plurality opinion);
see also
Schempp
, 374 U. S., at 306 (opinion of Goldberg,
J., joined by Harlan, J.) (there is “no simple and clear meas-
ure which by precise application can readily and invariably
demark the permissible from the impermissible”);
Walz
,
B REYER Clauses, it is only by “preserving doctrinal flexibility and
recognizing the need for a sensible and realistic application”
of those provisions.
Yoder
,
The Court proceeded in just this way in Locke . It consid- ered the same precedents the majority today cites in sup- port of its presumption of unconstitutionality. But it found that applying the presumption set forth in those cases to Washington’s decision not to fund devotional degrees would “extend” them “well beyond not only their facts but their reasoning.” 540 U. S., at 720. In my view, that analysis applies equally to this case.
Montana’s law does not punish religious exercise.
Cf.
Locke
,
I disagree, then, with what I see as the majority’s doctri- nal omission, its misplaced application of a legal presump- tion, and its suggestion that this presumption is appropri- ate in many, if not all, cases involving government benefits. As I see the matter, our differences run deeper than a sim- ple disagreement about the application of prior case law.
B REYER The Court’s reliance in our prior cases on the notion of
“play in the joints,” our hesitation to apply presumptions of
unconstitutionality, and our tendency to confine benefit-
related holdings to the context in which they arose all re-
flect a recognition that great care is needed if we are to re-
alize the Religion Clauses’ basic purpose “to promote and
assure the fullest scope of religious liberty and religious tol-
erance for all and to nurture the conditions which secure
the best hope of attainment of that end.”
Schempp
, 374
U. S., at 305 (opinion of Goldberg, J., joined by Harlan, J.);
see
Van Orden Perry
,
For one thing, government benefits come in many shapes and sizes. The appropriate way to approach a State’s benefit-related decision may well vary depending upon the relation between the Religion Clauses and the specific ben- efit and restriction at issue. For another, disagreements that concern religion and its relation to a particular benefit may prove unusually difficult to resolve. They may involve small but important details of a particular benefit program. Does one detail affect one religion negatively and another positively? What about a religion that objects to the partic- ular way in which the government seeks to enforce manda- tory (say, qualification-related) provisions of a particular benefit program? See, e.g. , New Life Baptist Church Acad- emy v. East Longmeadow , 885 F. 2d 940 (CA1 1989) (B REYER , J., for the court). Or the religious group that for religious reasons cannot accept government support? See Brief for Respondents 20–21 (noting, inter alia , Seventh- day Adventists’ support for Montana’s no-aid provision on this ground). And what happens when qualification re- quirements mean that government money flows to one reli- gion rather than another? Courts are ill equipped to deal with such conflicts. Yet, in a Nation with scores of different religions, many such disagreements are possible. And I have only scratched the surface.
B REYER The majority claims that giving weight to these consider-
ations would be a departure from our precedent and give
courts too much discretion to interpret the Religion
Clauses. See
ante
, at 16–18. But we have long understood
that the “application” of the First Amendment’s mandate of
neutrality “requires interpretation of a delicate sort.”
Schempp
,
Nor does the majority’s approach avoid judicial entangle- ment in difficult and sensitive questions. To the contrary, as I have just explained, it burdens courts with the still more complex task of untangling disputes between religious organizations and state governments, instead of giving def- erence to state legislators’ choices to avoid such issues alto- gether. At the same time, it puts States in a legislative di- lemma, caught between the demands of the Free Exercise and Establishment Clauses, without “breathing room” to help ameliorate the problem.
I agree with the majority that it is preferable in some ar-
eas of the law to develop generally applicable tests. The
problem, as our precedents show, is that the interaction of
the Establishment and Free Exercise Clauses makes it par-
ticularly difficult to design a test that vindicates the
Clauses’ competing interests in all—or even most—cases.
That is why, far from embracing mechanical formulas, our
precedents repeatedly and frankly acknowledge the need
for precisely the kind of “ ‘judgment-by-judgment analysis’ ”
the majority rejects.
Ante
, at 17; see,
e.g.
,
Walz
, 397 U. S.,
at 669. “The standards” of our prior decisions, we have said,
“should rather be viewed as guidelines with which to iden-
tify instances in which the objectives of the Religion
Clauses have been impaired.”
Tilton
,
B REYER The Court’s occasional efforts to declare rules in spite of this experience have failed to produce either coherence or consensus in our First Amendment jurisprudence. See Van Orden , 545 U. S., at 697 (B REYER , J., concurring in judg- ment) (listing examples). The persistence of such disagree- ments bears out what I have said—namely, that rigid, bright-line rules like the one the Court adopts today too of- ten work against the underlying purposes of the Religion Clauses. And a test that fails to advance the Clauses’ pur- poses is, in my view, far worse than no test at all.
Consider some of the practical problems that may arise from the Court’s holding. The States have taken advantage of the “play in the joints” between the Religion Clauses to craft programs of public aid to education that address their local needs. Many provide assistance to families with stu- dents in nonpublic schools, ranging from scholarships to tax credits and deductions that reimburse tuition expenses. See Dept. of Ed., A Duncan et al., Education Options in the States 3–6 (2009). Although most state constitutions today have no-aid provisions like Montana’s, those provisions are only one part of a broader system of local regulation. See App. D to Brief for Respondents. Some States have con- cluded that their no-aid provisions do not bar scholarships to students at religious schools, while others without such clauses have nevertheless chosen not to fund religious edu- cation. See Brief for State of Colorado et al. as Amici Curiae 6–7; Brief for State of Maine as Amicus Curiae 10–15. To- day’s decision upends those arrangements without stopping to ask whether they might actually further the objectives of the Religion Clauses in some or even many cases.
And what are the limits of the Court’s holding? The ma- jority asserts that States “need not subsidize private educa- tion.” Ante , at 20. But it does not explain why that is so. If making scholarships available to only secular nonpublic schools exerts “coercive” pressure on parents whose faith impels them to enroll their children in religious schools,
B REYER then how is a State’s decision to fund only secular public schools any less coercive? Under the majority’s reasoning, the parents in both cases are put to a choice between their beliefs and a taxpayer-sponsored education.
Accepting the majority’s distinction between public and nonpublic schools does little to address the uncertainty that its holding introduces. What about charter schools? States vary widely in how they permit charter schools to be struc- tured, funded, and controlled. See Mead, Devilish Details: Exploring Features of Charter School Statutes That Blur the Public/Private Distinction, 40 Harv. J. Legis. 349, 353– 357, 367–368 (2003). How would the majority’s rule distin- guish between those States in which support for charter schools is akin to public school funding and those in which it triggers a constitutional obligation to fund private reli- gious schools? The majority’s rule provides no guidance, even as it sharply limits the ability of courts and legisla- tures to balance the potentially competing interests that underlie the Free Exercise and Antiestablishment Clauses.
* * *
It is not easy to discern “the boundaries of the neutral
area between” the two Religion Clauses “within which the
legislature may legitimately act.”
Tilton
,
B REYER
theran
, lead me to believe that Montana’s differential treat-
ment of religious schools is constitutional. “If any room ex-
ists between the two Religion Clauses, it must be here.”
Locke
,
S OTOMAYOR SUPREME COURT OF THE UNITED STATES
_________________ No. 18–1195 _________________ KENDRA ESPINOZA, ET AL ., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, ET AL . ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA [June 30, 2020] J USTICE S OTOMAYOR , dissenting.
The majority holds that a Montana scholarship program unlawfully discriminated against religious schools by ex- cluding 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 as- applied challenge petitioners raise here. Indeed, nothing required the state court to uphold the program or the state legislature to maintain it. The Court nevertheless reframes the case and appears to ask whether a longstanding Mon- tana constitutional provision is facially invalid under the Free Exercise Clause, even though petitioners disavowed bringing such a claim. But by resolving a constitutional question not presented, the Court fails to heed Article III principles older than the Religion Clause it expounds. Cole- man v. Thompson , 501 U. S. 722, 730 (1991) (forbidding “resolution of a federal question” that “cannot affect” a state-court judgment).
Not only is the Court wrong to decide this case at all, it
decides it wrongly. In
Trinity Lutheran Church of Colum-
bia, Inc. Comer
,
S OTOMAYOR Court invokes that precedent to require a State to subsidize religious schools if it enacts an education tax credit. Be- cause this decision further “slights both our precedents and our history” and “weakens this country’s longstanding com- mitment to a separation of church and state beneficial to both,” ibid. , I respectfully dissent.
I
A
The Montana Supreme Court invalidated a state tax-
credit program because it was inconsistent with the Mon-
tana Constitution’s “no-aid provision,” Art. X, §6(1), which
forbids government appropriations for sectarian purposes,
including funding religious schools. 393 Mont. 446, 467–
468,
Petitioners’ free exercise claim is not cognizable. The
Free Exercise Clause, the Court has said, protects against
“indirect coercion or penalties on the free exercise of reli-
gion.”
Lyng Northwest Indian Cemetery Protective Assn.
,
Neither differential treatment nor coercion exists here
because the Montana Supreme Court invalidated the tax-
credit program entirely.
S OTOMAYOR at 614. Because no secondary school (secular or sectarian) is eligible for benefits, the state court’s ruling neither treats petitioners differently based on religion nor burdens their religious exercise. See ante , at 2–6 (G INSBURG , J., dissent- ing). Petitioners remain free to send their children to the religious school of their choosing and to exercise their faith.
To be sure, petitioners may want to apply for scholarships
and would prefer that Montana subsidize their children’s
religious education. But this Court had never before held
unconstitutional government action that merely failed to
benefit religious exercise. “The crucial word in the consti-
tutional text is ‘prohibit’: ‘For the Free Exercise Clause is
written in terms of what the government cannot do to the
individual, not in terms of what the individual can exact
from the government.’ ”
Lyng
, 485 U. S., at 451 (quoting
Sherbert
v.
Verner
,
Notably, petitioners did not allege that the no-aid provi- sion itself caused their harm or that invalidating the entire tax-credit scheme would create independent constitutional concerns. Even now, petitioners disclaim a facial challenge to the no-aid provision. Reply Brief 8, 20–22. Petitioners thus have no cognizable as-applied claim arising from the disparate treatment of religion, because there is no longer a program to which Montana’s no-aid provision can apply.
Nor is it enough that petitioners might wish that Mon-
tana’s no-aid provision were no longer good law. Petitioners
identify no disparate treatment traceable to the state con-
stitutional provision that they challenge because the tax-
credit program no longer operates. See
Simon Eastern
Ky. Welfare Rights Organization
,
[1] To revive their as-applied challenge, petitioners rely on Griffin v. *85 4
S OTOMAYOR subsidy that Montana law does not permit, there is nothing for this Court to do.
——————
School Bd. of Prince Edward Cty.
,
[2] Petitioners here have not asserted a free exercise claim on a theory
that they were victims of religious animus, either. Cf.
Church of Lukumi
Babalu Aye, Inc.
v.
Hialeah
,
In any case, the concurrence’s arguments are as misguided as they are misplaced. Citing the Court’s opinion in Ramos , the concurrence main- tains that a law’s “ ‘uncomfortable past’ must still be ‘[e]xamined.’ ” Ante , at 10 (opinion of A LITO , J.). But as previously explained: “Where a law otherwise is untethered to [discriminatory] bias—and perhaps also where a legislature actually confronts a law’s tawdry past in reenacting it—the new law may well be free of discriminatory taint.” Ramos , 590 U. S., at ___ (S OTOMAYOR , J., concurring in part) (slip op., at 4). That could not “be said of the laws at issue” in Ramos . Ibid. It can be here. See Part II, infra .
The concurrence overlooks the starkly different histories of these state laws. Also missing from the concurrence (and the amicus briefs it re- peats) is the stubborn fact that the constitutional provision at issue here was adopted in 1972 at a convention where it was met with overwhelm- ing support by religious leaders (Catholic and non-Catholic), even those who examined the history of prior no-aid provisions. See Brief for Re- spondents 16–27; 6 Montana Constitutional Convention 1971–1972 Pro- ceedings and Transcript, pp. 2012–2013, 2016–2017 (Mont. Legislature and Legislative Council); see also ante , at 12–13 (B REYER , J., dissenting);
S OTOMAYOR
B
As another dissenting opinion observes, see ante, at 3 (opinion of G INSBURG , J.), the Court sidesteps these obsta- cles by asking a question that this case does not raise and that the Montana Supreme Court did not answer: whether by excluding “religious schools and affected families from [a scholarship] program,” Montana’s no-aid provision was “consistent with the Federal Constitution,” ante , at 7 (ma- jority opinion). In so doing, the Court appears to transform petitioners’ as-applied challenge into a facial one. Ante , at 10; see also ante , at 1 (T HOMAS , J., concurring).
This approach lacks support in our case law. The Court
typically declines to read state-court decisions as impliedly
resolving federal questions, especially ones not raised by
the parties. See,
e.g.
,
Adams
v.
Robertson
,
That rule respects not only federalism, but also the sepa-
ration of powers. Article III confines this Court’s authority
to adjudicating actual “[c]ases” or “[c]ontroversies.” See
also
Allen Wright
,
Brief for Public Funds Public Schools as Amicus Curiae 5–11; Brief for Montana Constitutional Convention Delegates as Amici Curiae 19–25. These supporters argued that it would be wrong to put taxpayer dollars to religious purposes and that it would invite unwelcome entanglement between church and state. See, e.g. , U. S. Const., Amdt. 1; Brief for Re- spondents 20.
S OTOMAYOR resolve only “real and substantial controvers[ies] admitting
of specific relief through a decree of a conclusive character,
as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts.”
Lewis
v.
Con-
tinental Bank Corp.
,
True, on occasion this Court has resolved federal consti-
tutional questions when it was unclear whether the state-
court judgment rested on an adequate and independent
state-law ground. See,
e.g.
,
Michigan
v.
Long
, 463 U. S.
1032, 1043 (1983). But that is not this case. Recall that the
Montana Supreme Court remedied a state constitutional vi-
olation by invalidating a state program on state-law
grounds, having expressly declined to reach any federal is-
sue. See
These principles exist to prevent this Court from issuing advisory opinions, sowing confusion, and muddying the law. This is case in point. 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.” Ante , at 22. 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
S OTOMAYOR state court to order a state legislature to fund religious ex-
ercise, overruling centuries of contrary precedent and his-
torical practice? See
Cutter
v.
Wilkinson
, 544 U. S. 709
(2005);
Locke Davey
,
The Court views its decision as “simply restor[ing] the status quo established by the Montana Legislature.” Ante at 22, n. 4. But it overlooks how that status quo allowed the State Supreme Court to cure any disparate treatment of religion while still giving effect to a state constitutional provision ratified by the citizens of Montana. Today’s deci- sion replaces a remedy chosen by representatives of Mon- tanans and designed to honor the will of the electorate with one that the Court prefers instead.
In sum, the decision below neither upheld a program that “disqualif[ies] some private schools solely because they are religious,” ante , at 20, nor otherwise decided the case on federal grounds. The Court’s opinion thus turns on a coun- terfactual hypothetical it is powerless (and unwise) to de- cide.
II
Even on its own terms, the Court’s answer to its hypo- thetical question is incorrect. The Court relies principally on Trinity Lutheran , which found that disqualifying an en- tity from a public benefit “solely because of [the entity’s] re- ligious character” could impose “a penalty on the free exer- cise of religion.” 582 U. S., at ___–___ (slip op., at 9–10). *89 8
S OTOMAYOR Trinity Lutheran held that ineligibility for a government benefit impermissibly burdened a church’s religious exer- cise by “put[ting it] to the choice between being a church and receiving a government benefit.” Id. , at ___ (slip op., at 13). Invoking that precedent, the Court concludes that Montana must subsidize religious education if it also subsi- dizes nonreligious education.
The Court’s analysis of Montana’s defunct tax program reprises the error in Trinity Lutheran . Contra the Court’s current approach, our free exercise precedents had long granted the government “some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws.” Id. , at ___ (S OTOMAYOR , J., dissenting) (slip op., at 9).
Until
Trinity Lutheran
, the right to exercise one’s religion
did not include a right to have the State pay for that reli-
gious practice. See
School Dist. of Abington Township
v.
Schempp
,
[3] Petitioners’ as-applied challenge fails under Trinity Lutheran for the reasons stated above: The Montana Supreme Court’s remedy does not put petitioners to any “choice” at all. Rather, petitioners are free to send their children to any secondary school they wish while practicing their religious beliefs, and no one receives a tax credit for their school choice.
S OTOMAYOR whether the interests embodied in the Religion Clauses jus- tify that line.” Trinity Lutheran , 582 U. S., at ___ (S OTOMAYOR , J. , dissenting ) (slip op., at 8). The relevant question had always been not whether a State singles out religious entities, but why it did so.
Here, a State may refuse to extend certain aid programs
to religious entities when doing so avoids “historic and sub-
stantial” antiestablishment concerns.
Locke
, 540 U. S., at
725. Properly understood, this case is no different from
Locke
because petitioners seek to procure what the plain-
tiffs in
Locke
could not: taxpayer funds to support religious
schooling.
[4]
Indeed, one of the concurrences lauds petition-
ers’ spiritual pursuit, acknowledging that they seek state
funds for manifestly religious purposes like “teach[ing] re-
ligion” so that petitioners may “outwardly and publicly” live
out their religious tenets.
Ante
, at 3 (opinion of G ORSUCH ,
J.). But those deeply religious goals confirm why Montana
may properly decline to subsidize religious education. In-
volvement in such spiritual matters implicates both the Es-
tablishment Clause, see
Cutter
,
The Court maintains that this case differs from Locke be- cause no pertinent “ ‘historic and substantial’ ” tradition supports Montana’s decision. Ante , at 14. But the Court’s ——————
[4]
Locke
confirms that a facial challenge to no-aid provisions must fail.
But cf.
ante
, at 13–14 (majority opinion). In
Locke
, this Court upheld the
application of a materially similar no-aid provision in Washington State,
concluding that the Free Exercise Clause permitted Washington to forbid
state-scholarship funds for students pursuing devotional theology de-
grees.
S OTOMAYOR historical analysis is incomplete at best. For one thing, the
Court discounts anything beyond the 1850s as failing to “es-
tablish an early American tradition,”
ante
, at 15, while it-
self relying on examples from around that time,
ante
, at 14.
For another, although the States may have had “rich diver-
sity of experience” at the founding, “the story relevant here
is one of consistency.”
Trinity Lutheran
,
The Court further suggests that by abstaining from fund-
ing religious activity, the State is “ ‘suppress[ing]’ ” and “pe-
naliz[ing]” religious activity.
Ante
, at 19–20. But a State’s
decision not to fund religious activity does not “disfavor re-
ligion; rather, it represents a valid choice to remain secular
in the face of serious establishment and free exercise con-
cerns.”
Trinity Lutheran
,
Finally, it is no answer to say that this case involves “dis- crimination.” Ante , at 11–12. A “decision to treat entities differently based on distinctions that the Religion Clauses make relevant does not amount to discrimination.” Trinity Lutheran , 582 U. S., at ___ (S OTOMAYOR , J., dissenting) (slip op., at 22). So too here.
S OTOMAYOR
* * *
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
,
I respectfully dissent.