Lead Opinion
*2251The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone 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 question 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 parental and student choice in education" by enacting a scholarship program for students attending private schools. 2015 Mont. Laws p. 2168, § 7. The program grants a tax credit of up to $150 to any taxpayer who donates to a participating "student scholarship organization."
So far only one scholarship organization, Big Sky Scholarships, has participated in the program. Big Sky focuses on providing scholarships to families who face financial hardship or have children with disabilities. Scholarship organizations like Big Sky must, among other requirements, maintain an application process for awarding the scholarships; use at least 90% of all donations on scholarship awards; and comply with state reporting and monitoring requirements. §§ 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). Virtually every private school in Montana qualifies. Upon receiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholarship 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.
*2252The program is slated to expire in 2023. 2015 Mont. Laws p. 2186, § 33.
The Montana Legislature also directed that the program be administered in accordance with Article X, section 6, of the Montana Constitution, which contains a "no-aid" provision barring government aid to sectarian schools. See
"Aid prohibited to sectarian schools. ... The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect 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, academy, 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 scholarships 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, religious sect, or denomination."
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 program, 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.
B
This suit was brought by three mothers whose children attend Stillwater Christian School in northwestern Montana. 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
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."
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 *2253in fall 2017, Big Sky received 59 applications and ultimately awarded 44 scholarships of $500 each. The next year, Big Sky received 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 Stillwater Christian.
In December 2018, the Montana Supreme Court reversed the trial court.
The Montana Supreme Court went on to hold that the violation of the no-aid provision required invalidating the entire 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.
The Montana Supreme Court acknowledged that "an overly-broad" application of the no-aid provision "could implicate free exercise concerns" and that "there may be a case" where "prohibiting the aid would violate the Free Exercise Clause."
Finally, the Court agreed with petitioners that the Department 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 the Department lacked authority to "transform" that definition with an administrative rule.
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 concurrence argued that the program violated not only Montana's no-aid provision but also the Federal Establishment and Free Exercise Clauses.
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.
We granted certiorari. 588 U.S. ----,
II
A
The Religion Clauses of the First Amendment provide that "Congress shall make no law respecting an establishment 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, Inc. v. Comer , 582 U.S. ----, ----,
The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana's no-aid provision to bar religious schools from the scholarship program. For purposes of answering that question, we accept the Montana Supreme Court's interpretation 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 Constitution.
The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, "protects religious observers against unequal treatment" and against "laws that impose special disabilities on the basis of religious status." Trinity Lutheran , 582 U.S., at ----, ----,
Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the "unremarkable" conclusion 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 triggers the most exacting scrutiny." 582 U.S., at ---- - ----,
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 prohibited to sectarian schools"-confirms that the provision singles out schools based on their religious character.
The Department counters that Trinity Lutheran does not govern here because the no-aid provision applies not because of the religious character of the recipients, but because of how the funds would be used-for "religious education." Brief for Respondents 38. In Trinity Lutheran , a majority of the Court concluded that the Missouri policy violated the Free Exercise Clause because it discriminated on the basis of religious status. A plurality declined to address discrimination with respect to "religious uses of funding or other forms of discrimination." 582 U.S., at ----, n. 3,
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."
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 being used for "sectarian education" or "religious education."
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 organizations 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.
*2257Trinity Lutheran , 582 U.S., at ---- - ----, 137S.Ct., at 2022 (internal quotation marks omitted). Such status-based discrimination is subject to "the strictest scrutiny."
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 religious uses of government aid. See Lukumi ,
B
Seeking to avoid Trinity Lutheran , the Department contends that this case is instead governed by Locke v. Davey ,
Locke differs from this case in two critical ways. First, Locke explained that Washington had "merely chosen not to fund a distinct category of instruction": the "essentially religious endeavor" of training a minister "to lead a congregation."
Second, Locke invoked a "historic and substantial" state interest in not funding the training of clergy, *2258
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 ,
The Department argues that a tradition against state support for religious schools arose in the second half of the 19th century, as more than 30 States-including Montana-adopted no-aid provisions. See Brief for Respondents 40-42 and App. D.
*2259Such a development, of course, cannot by itself establish an early American tradition. Justice SOTOMAYOR questions our reliance on aid provided during the same era by the Freedmen's Bureau, post , at 2297 (dissenting opinion), but we see no inconsistency in recognizing that such evidence may reinforce an early practice but cannot 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 Constitution a provision similar to the state no-aid provisions, prohibiting States from aiding "sectarian" schools. See Mitchell v. Helms ,
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 Respondents 20, 42. But, on the other side of the ledger, many States today-including those with no-aid provisions-provide support to religious schools through vouchers, scholarships, tax credits, and other measures. See Brief for Oklahoma 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 options in tax credit programs. Reply Brief 22, n. 9.
All to say, we agree with the Department that the historical 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. Justice SOTOMAYOR 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 2295 - 2296, 2296 (quoting Trinity Lutheran , 582 U.S., at ----, ----,
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 , 582 U.S., at ---- - ----,
For innovation, one must look to the dissents. Their "room[y]" or "flexible" approaches to discrimination against religious organizations and observers would mark a significant departure from our free exercise precedents. The protections of the Free Exercise Clause do not depend on a "judgment-by-judgment analysis" regarding whether discrimination against religious adherents would somehow serve ill-defined interests. Cf. Medellín v. Texas ,
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 scrutiny" is required. Supra , at 2255, 2257 (quoting Trinity Lutheran , 582 U.S., at ----,
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 provision actually promotes religious freedom. In the Department's view, the no-aid provision protects the religious liberty of taxpayers by ensuring that their taxes are not directed to religious organizations, and it safeguards the freedom of religious organizations by keeping the government 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 infringement advances religious liberty. Our federal system prizes state experimentation, but not "state experimentation in the suppression of free speech," and the same goes for the free exercise of religion.
*2261Boy Scouts of America v. Dale ,
Furthermore, we do not see how the no-aid provision promotes religious freedom. As noted, this Court has repeatedly upheld government programs that spend taxpayer funds on equal aid to religious observers and organizations, particularly when the link between government and religion is attenuated by private choices. A school, concerned about government involvement with its religious activities, might reasonably decide for itself not to participate in a government program. But we doubt that the school's liberty is enhanced by eliminating any option to participate in the first place.
The Department'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 religious 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. Wisconsin v. Yoder ,
The Department also suggests that the no-aid provision advances Montana's interests in public education. According to the Department, the no-aid provision safeguards the public school system by ensuring that government support is not diverted to private schools. See Brief for Respondents 19, 25. But, under that framing, the no-aid provision is fatally underinclusive because its "proffered objectives are not pursued with respect to analogous nonreligious conduct." Lukumi ,
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 Supreme Court ultimately eliminated the scholarship program altogether. According to the Department, now that there is no program, religious schools and adherents *2262cannot complain that they are excluded from any generally available benefit.
Two dissenters agree. Justice GINSBURG 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 2281, and Justice SOTOMAYOR describes the decision below as resting on state law grounds having nothing to do with the federal Free Exercise Clause, see post , at 2292, 2294 - 2295.
The descriptions are not accurate. The Montana Legislature 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 invalidate the entire program.
The final step in this line of reasoning eliminated the program, 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 Constitution to reject the invitation. Had the Court recognized that this was, indeed, "one of those cases" in which application of the no-aid provision "would violate the Free Exercise Clause,"
The 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 Contrary notwithstanding." Art. VI, cl. 2. "[T]his Clause creates 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. ,
* * *
The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice THOMAS, with whom Justice GORSUCH joins, concurring.
The Court correctly concludes that Montana's no-aid provision 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 children to such schools. I write separately to explain how this Court's interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.
I
A
This case involves the Free Exercise Clause, not the Establishment Clause. But as in all cases involving a state actor, the modern understanding of the Establishment Clause is a "brooding omnipresence," Southern Pacific Co. v. Jensen ,
This understanding of the Establishment Clause is unmoored from the original meaning of the First Amendment. As I have explained in previous cases, at the founding, the Clause served only to "protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government." Zelman v. Simmons-Harris ,
*2264There is mixed historical evidence concerning whether the Establishment Clause was understood as an individual right at the time of the Fourteenth Amendment's ratification.
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 favoring religion. They can legislate as they wish, subject only to the limitations in the State and Federal Constitutions. See Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation,
B
I have previously made these points in Establishment Clause cases to show that the Clause likely has no application to the States or, if it is capable of incorporation, that the Court employs a far broader test than the Clause's original meaning. See, e.g. , American Legion , 588 U.S., at ----, 139 S.Ct., at 2094-2095 (opinion concurring in judgment); Town of Greece ,
Under this Court's current approach, state and local governments may rely on the Establishment Clause to justify policies that others wish to challenge as violations of the Free Exercise Clause. Once the government demonstrates that its policy is required for compliance with the Constitution, any claim that the policy infringes on free exercise cannot survive. A few examples suffice to illustrate this practice.
Of most relevance to this case is Locke v. Davey ,
*2265But no antiestablishment interests, properly understood, were at issue in Locke . The State neither coerced students to study devotional theology nor conscripted taxpayers into supporting any form of orthodoxy. Thus, as I have explained, Locke incorrectly interpreted the Establishment Clause and should not impact free exercise challenges. Trinity Lutheran Church of Columbia , Inc. v. Comer , 582 U.S. ----, ----,
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 ,
Finally, this Court's infamous test in Lemon v. Kurtzman ,
II
The Court's current understanding of the Establishment Clause actually thwarts, *2266rather than promotes, equal treatment of religion. Under a proper understanding of the Establishment 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 activity, 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 prohibit content-based restrictions because they "value some forms of speech over others," City of Ladue v. Gilleo ,
Historical evidence suggests that many advocates for this separationist view were originally motivated by hostility toward certain disfavored religions. See P. Hamburger, Separation of Church and State 391-454 (2002). And this Court's adoption of a separationist interpretation has itself sometimes bordered on religious hostility. Justice Black, well known for his role in formulating the Court's modern Establishment Clause jurisprudence, once described Catholic petitioners as "powerful sectarian religious propagandists" "looking toward complete domination and supremacy" of their "preferences and prejudices." Board of Ed. of Central School Dist. No. 1 v. Allen ,
Although such hostility may not be overtly expressed by the Court any longer, manifestations of this "trendy disdain for deep religious conviction" assuredly live *2267on. Locke ,
* * *
As I have recently explained, this Court has an unfortunate tendency to prefer certain constitutional rights over others. See United States v. Sineneng-Smith , --- U.S. ----, ----,
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
Justice SOTOMAYOR argues that the Montana Supreme Court "expressly declined to reach any federal issue." Post , at 2295 (dissenting opinion). Not so. As noted, supra , at 2253, the Montana Supreme Court recognized that certain applications of the no-aid provision could "violate the Free Exercise Clause."
Justice BREYER sees "no meaningful difference" between concerns animating bans on support for clergy and bans on support for religious schools. Post , at 2286. But evidently early American governments did. See supra, at 2258. Justice BREYER contests particular examples but acknowledges that some bans on clergy support did not bar certain "sponsorship" of religious schools. Post , at 2286. And, central to the issue here, he certainly does not identify a consistent early tradition, of the sort invoked in Locke , against support for religious schools. Virginia's opposition to establishing university theology professorships and chartering theological seminaries, see ibid. , do not fit the bill. Buckley, After Disestablishment: Thomas Jefferson's Wall of Separation in Antebellum Virginia, 61 J. So. Hist. 445, 452-453 (1995). Justice BREYER also invokes Madison's objections to the Virginia Assessment Bill, post , at 2285 - 2286, 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 Religious Assessments, Art. 4, reprinted in Everson ,
Justice SOTOMAYOR worries that, in light of our decision, the Montana Supreme Court must "order the State to recreate" a scholarship program that "no longer exists." Post , at 2295 (dissenting opinion). But it was the Montana Supreme Court that eliminated the program, in the decision 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 alterations the Legislature may choose to make in the future.
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.
Concurrence Opinion
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 parents from participating in a publicly funded scholarship program simply because they send their children to religious schools. Regardless of the motivation for this provision 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 v. Louisiana , 590 U.S. ----,
I argued in dissent that this original motivation, though deplorable, had no bearing on the laws' constitutionality because such laws can be adopted for non-discriminatory reasons, and "both States readopted their rules under different circumstances in later years." Id. , at ----, 140 S.Ct. at 1426. But I lost, and Ramos is now precedent. If the original motivation 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 Curiae 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 Independence 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 Arizona 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 organizations affiliated with the Catholic Church, point out that Montana's provision was modeled on the failed Blaine Amendment to the Constitution of the United States. Named after House Speaker James Blaine, the Congressman who introduced it in 1875, the amendment was prompted by virulent prejudice against immigrants, particularly Catholic immigrants. In effect, the amendment would have "bar[red] any aid" to Catholic and other "sectarian" schools. Mitchell v. Helms ,
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);
This history is well-known and has been recognized in opinions of this Court. See, e.g. , Locke v. Davey ,
A wave of immigration in the mid-19th century, spurred in part by potato blights in Ireland and Germany, significantly increased this country's Catholic population.
Catholics were considered by such groups not as citizens of the United States, but as "soldiers of the Church of Rome,"
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 hungrily toward American children as a public school crumbles in the background:
*2270The 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 nonunanimity 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 prohibited 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 denomination whatever." Mont. Const., Art. XI, § 8 (1889). At the time, "it was an open secret that 'sectarian' was code for 'Catholic.' " Mitchell , 530 U.S. at 828,
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 Constitutional 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."
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 provision shall be made for the establishment and maintenance of systems of public schools ... free from sectarian control." Act of Feb. 22, 1889, § 4,
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 separate 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 Massachusetts 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 difficult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of "least-common-denominator Protestantism."
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 insinuations that today would be considered far more inflammatory. In his 10th annual report on the Massachusetts schools, Mann described the State as "parental,"
*2272assuming 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.
Catholic and Jewish schools sprang up because the common 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 children to" those schools.
But schools require significant funding, and when religious 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.
In 1854, the Know Nothing party, in many ways a forerunner of the Ku Klux Klan,
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 constitutional convention. See post , at 2293 - 2294, n. 2 (opinion of SOTOMAYOR, J.); see also Brief for Respondents 18; Tr. of Oral Arg. 22-23. They emphasize that the convention included Catholics, just as the constitutional convention that readopted Louisiana's purportedly racist non-unanimous jury provision included black delegates. As noted, a virtually identical argument was rejected in Ramos , even though " 'no mention was made of race' " during the Louisiana convention debates. 590 U.S., at ----, 140 S.Ct., at 1426 (ALITO, J., dissenting) (quoting State v. Hankton , 2012-0375, p. 19 (La.App.4Cir. 8/2/13),
Delegates at Montana's constitutional convention in 1972 acknowledged that the no-aid provision was "a badge of bigotry," 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."
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 religiously affiliated schools. Forty-five were Roman Catholic.
*2274aid. See Convention Tr. 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 reenacting it." Ramos , 590 U.S., at ----, 140 S.Ct., at 1410 (SOTOMAYOR, J., concurring in part). After all, whereas the no-aid provision had originally been foisted on Montana, the State readopted it voluntarily-"sectarian" references included. Whether or not the State did so for any reason that could be called legitimate, the convention delegates recognized that the provision would "continue to mean and do whatever it does now," Convention Tr. 2014 (statement of Delegate Loendorf), and the discrimination in this case shows that the provision continues to have its originally intended effect. And even if Montana had done more to address its no-aid provision's past, that would of course do nothing to resolve the bias inherent in the Blaine Amendments among the 17 States, by respondents' count, that have not readopted or amended them since around the turn of the 20th century.
Today's public schools are quite different from those envisioned by Horace Mann, but many parents of many different 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 expense, or have undertaken the burden of homeschooling. The tax-credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice. The argument that the decision below treats everyone the same is reminiscent of Anatole France's sardonic remark that " '[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.' " J. Cournos, A Modern Plutarch 35 (1928).
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.
Locke confirms that a facial challenge to no-aid provisions must fail. But cf. ante , at 2257 - 2258 (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 degrees.
P. Hamburger, Separation of Church and State 206 (2002).
See Natelson, Why Nineteenth Century Bans on "Sectarian" Aid Are Facially Unconstitutional: New Evidence on Plain Meaning, 19 Federalist Soc. Rev. 98, 104 (2018).
Green, The Blaine Amendment Reconsidered,
DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns,
Viteritti, Blaine's Wake: School Choice, the First Amendment, and State Constitutional Law,
Jeffries & Ryan, A Political History of the Establishment Clause,
See Glenn 166; Lain, God, Civic Virtue, and the American Way: Reconstructing Engel ,
See Jeffries & Ryan 300.
See Viteritti, Choosing Equality: School Choice, the Constitution, and Civil Society 151 (1999).
See Sekulow & Tedesco, The Story Behind Vidal v. Girard 's Executors: Joseph Story, the Philadelphia Bible Riots, and Religious Liberty, 32 Pepperdine L. Rev. 605, 630 (2005).
See
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. 15577, p. 15 (internal quotation marks, citation, and brackets omitted).
See generally Myers, Know Nothing and Ku Klux Klan, 219 North American Rev. 1 (Jan. 1924).
6 Montana Constitutional Convention 1971-1972, Proceedings and Transcript, p. 2012 (Mont. Legislature and Legislative Council) (Convention Tr.) (statement of Delegate Schiltz); see also, e.g. , id., at 2010 (statement 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).
See Nat. Center for Educational Statistics, Statistics of Nonpublic Elementary and Secondary Schools 1970-71, pp. 32-33 (1973) (Table 1).
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).
Concurrence Opinion
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 nonprofit scholarship organizations. As the program began to take root, Montana had just one scholarship organization. It granted scholarships to families who were struggling financially 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 single mother who works three jobs. She planned to use scholarships to help keep her daughters at an accredited religious 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 organization was then free to choose scholarship recipients; and, *2275after 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 constitutional 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 dry up, and so do the scholarships enabling school choice.
Today, the Court explains how the Montana Constitution, 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 decision to eliminate the tax credit program fails to mask the discrimination. But for the Montana Constitution's impermissible 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 "religious status and not religious use." Ante, at 2256. No doubt, the Court proceeds as it does to underscore how the outcome of this case follows from Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U.S. ----,
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 could be used to "subsidiz[e] the sectarian school's educational program" and thereby "strengthen ... religious education."
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 status-based discrimination. But it seems equally, and maybe more, natural to say that the State's discrimination focused on what religious parents and schools do -teach religion. Nor are the line-drawing challenges here unique; they have arisen before and will *2276again. See Trinity Lutheran , 582 U.S., at ---- - ----,
Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly. At the time of the First Amendment'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
Our cases have long recognized the importance of protecting 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 protects the "freedom to act" as well as the "freedom to believe." Cantwell v. Connecticut ,
Even cases that seemingly focus on religious status do so with equal respect for religious actions. In McDaniel v. Paty ,
Consistently, too, we have recognized the First Amendment's protection for religious conduct in public benefits cases. When the government chooses to offer *2277scholarships, 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 v. Verner ,
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 calendar? 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 suffer little in a world where only inward belief or status is protected. But what about those with a deep faith that requires 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 religious beliefs and practices are least popular, would face the greatest disabilities. Mitchell v. Helms ,
*2278It 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 meddle with no man's conscience; but if you mean by that, liberty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted.' " McDaniel ,
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 aspect 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 tolerate 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 neither where the government points its gun nor where it places its thumb. McDaniel ,
Montana's Supreme Court disregarded these foundational principles. Effectively, the court told the state legislature and parents of Montana like Ms. Espinoza: You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public benefit discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.
Justice GINSBURG, with whom Justice KAGAN joins, dissenting.
The Montana Legislature enacted a scholarship program to fund tuition for students attending private secondary schools. See
*2279The First Amendment prohibits the government from "mak[ing a] law ... prohibiting the free exercise" of religion. U.S. Const., Amdt. 1. This Court's decisions have recognized 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 ,
Petitioners argue that the Montana Supreme Court's decision fails when measured against Trinity Lutheran . I do not see how. Past decisions in this area have entailed differential treatment occasioning a burden on a plaintiff 's religious exercise. Lyng ,
Accordingly, the Montana Supreme Court's decision does not place a burden on petitioners' religious exercise. Petitioners may still send their children to a religious school. And the Montana Supreme Court's decision does not pressure them to do otherwise. Unlike the law in Trinity Lutheran , 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 ----,
True, petitioners expected to be eligible for scholarships under the legislature's program, and to use those scholarships 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 Justice SOTOMAYOR observes, see post, at 2293 (dissenting opinion), this Court has consistently refused to treat neutral government action as unconstitutional solely because it fails to benefit religious exercise. See Sherbert ,
*2280These considerations should be fatal to petitioners' free exercise claim, yet the Court does not confront them. Instead, 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] program was consistent with the Federal Constitution." Ante , at 2254 (majority opinion). The Court goes on to hold that the Montana Supreme Court's application of the no-aid provision violates the Free Exercise Clause because it " 'condition[s] the availability of benefits upon a recipient's willingness to surrender [its] religiously impelled status.' " Ante , at 2256 (quoting Trinity Lutheran , 582 U.S., at ---- - ----,
Finding the "beginning" of the Montana Supreme Court's decision erroneous, this Court regards the state court's ultimate judgment as irrelevant. Ante, at 2261 - 2263. In the Court's recounting, the Montana court first held that religious schools must be excluded from the scholarship program-necessarily determining that the Free Exercise Clause permitted that result-and only subsequently struck the entire program as a way of carrying out its holding. See ante, at 2262 ("When the [Montana Supreme] Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation."). But the initial step described by this Court is imaginary. The Montana court determined that the scholarship program violated the no-aid provision because it resulted in aid to religious 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 ----, the no-aid provision did not require the Montana Supreme
Court to "exclude" religious schools from the scholarship program. The provision mandated only that the state treasury 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 implemented in two ways. A State may distinguish within a benefit 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 2261 - 2262. 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 provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional. See ante, at 2262. Petitioners, *2281however, 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 government benefit. See, e.g ., Reply Brief 8, 20, 21-22. This Court therefore had no call to reach that issue. See Adams v. Robertson ,
Nearing the end of its opinion, the Court writes: "A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious." Ante , at 2261. Because Montana's Supreme Court did not make such a decision-its judgment put all private school parents in the same boat-this Court had no occasion to address the matter.
Justice BREYER, with whom Justice KAGAN 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 religion. Taken together, the Religion Clauses have helped our Nation avoid religiously based discord while securing liberty for those of all faiths.
This Court has long recognized that an overly rigid application of the Clauses could bring their mandates into conflict 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 doctrine here. It holds that the Free Exercise Clause forbids a State to draw any distinction between secular and religious uses of government aid to private schools that is not required by the Establishment Clause. 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.
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
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 Supreme Court's wholesale invalidation of the tax credit program. Cf. ante , at 2279 (GINSBURG, J., dissenting); post , at 2292 - 2293 (SOTOMAYOR, J., dissenting).
A
We all recognize that the First Amendment prohibits discrimination 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 absolutely 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 neutrality," allowing "religious exercise to exist without sponsorship and without interference."
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 *2283support nonpublic education, "it cannot disqualify some private schools solely because they are religious." Ante , at 2261. I shall explain why I disagree.
B
As the majority acknowledges, two cases are particularly relevant: Trinity Lutheran Church of Columbia , Inc. v. Comer , 582 U.S. ----,
By excluding schools with ties to churches, the Court wrote, the State's law put the church "to a choice: It may participate in an otherwise available benefit program or remain a religious institution."
We confronted a different kind of aid program, and came to a different conclusion, in Locke . There, we reviewed a Washington law that offered taxpayer-funded scholarships to college students on the express condition that they not pursue degrees that were " 'devotional in nature or designed to induce religious belief.' "
The Court observed that the State's decision not to fund devotional degrees did not penalize religious exercise or require anyone to choose between their faith and a "government benefit."
The majority finds that the school-playground case, Trinity Lutheran , and not the religious-studies case, Locke , controls here. I disagree. In my view, the program at issue here is strikingly similar to the program we upheld in Locke and importantly different from the program we found unconstitutional in Trinity Lutheran . Like the State of Washington in Locke , Montana has chosen not to fund (at a distance) "an essentially religious endeavor"-an education designed to " 'induce religious faith.' " Locke ,
The Court in Locke recognized that the study of devotional theology can be "akin to a religious calling as well as an academic pursuit."
Nothing in the Constitution discourages this type of instruction. 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 ,
What, then, is the difference between Locke and the present case? And what is it that leads the majority to conclude that funding the study of religion is more like paying to fix up a playground ( Trinity Lutheran ) than paying for a degree in theology ( Locke )? The majority's principal argument appears to be that, as in *2285Trinity Lutheran , Montana has excluded religious schools from its program "solely because of the religious character of the schools." Ante , at 2255. The majority seeks to contrast this status -based discrimination with the program at issue in Locke , which it says denied scholarships to divinity students based on the religious use to which they put the funds-i.e. , training for the ministry, as opposed to secular professions. See ante , at 2256 - 2257 (citing Trinity Lutheran , 582 U.S., at ---- - ----,
It is true that Montana's no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke , is what petitioners " 'propos[e] to do -use the funds to' " obtain a religious education. Ante , 2257 (quoting Trinity Lutheran , 582 U.S., at ----,
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 religious 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 2259. But the majority ignores the reasons for the founding era bans that we relied upon in Locke .
"Perhaps the most famous example," Locke ,
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);
*2286Drakeman, 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 indoctrination threatened. "[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves," the preamble declared, "is sinful and tyrannical." A Bill for Establishing Religious Freedom (1779), in 2 The Papers of Thomas Jefferson 545 (J. Boyd ed. 1950). The statute accordingly provided "that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever."
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 circumstances and want of education, cannot otherwise attain such knowledge" in the tenets of religious faith. A Bill Establishing a Provision for Teachers of the Christian Religion, reprinted in Everson ,
The majority argues that at least some early American governments saw no contradiction between bans on compelled support for clergy and taxpayer support for religious schools or universities. See ante , at 2258, n. 3. That some States appear not to have read their prohibitions on compelled support to bar this kind of sponsorship, however, does not require us to blind ourselves to the obvious contradiction between the reasons for prohibiting compelled support and the effect of taxpayer funding for religious education. Madison and Jefferson saw it clearly. They opposed including theological professorships in their plans for the public University of Virginia and the Commonwealth hesitated 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, Public 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 2259. But founding era attitudes toward compelled support of clergy were no less complex. Many prominent members of the founding generation, including George Washington, Patrick Henry, and John Marshall, supported Virginia's Assessment Bill. See Dreisbach, *2287George Mason's Pursuit of Religious 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 argued that it is next to impossible to attribute to the Founders 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 Republic were people, including Madison and Jefferson, who perceived a grave threat to individual liberty and communal harmony in tax support for the teaching of religious truths. These "historic and substantial" concerns have consistently guided the Court's application of the Religion Clauses since. Locke ,
Nor can I see how it could make a difference that the Establishment Clause might permit the State to subsidize religious education through a program like Montana's. The 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 2254 (citing Zelman ,
Neither does it address related concerns that I have previously 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 convention show that these concerns were among the reasons that a religiously diverse group of delegates, including *2288faith leaders of different denominations, supported the no-aid provision. See Brief for Respondents 18-23; Brief for Montana Constitutional Convention Delegates as Amici Curiae 19-21, 22, 24-25 (noting support for the provision from a Congregationalist minister, the Roman Catholic priest responsible for Catholic schools in the Diocese of Great Falls, a Methodist pastor, a Presbyterian minister, and the Montana 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 2257 (quoting Locke ,
If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom.
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 innovations that, in my view, are misguided and threaten adverse consequences.
Although the majority refers in passing to the "play in the joints" between that which the Establishment Clause forbids 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 characterization of this case, supra , at 2254 - 2255, 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 2255, 2256 - 2257.
*2289Experience has taught us that "we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication." Tilton v. Richardson ,
The Court proceeded in just this way in Locke . It considered the same precedents the majority today cites in support 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."
Montana's law does not punish religious exercise. Cf. Locke ,
I disagree, then, with what I see as the majority's doctrinal omission, its misplaced application of a legal presumption, and its suggestion that this presumption is appropriate in many, if not all, cases involving government benefits. As I see the matter, our differences run deeper than a simple disagreement about the application of prior case law.
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 benefitrelated holdings to the context in which they arose all reflect a recognition that great care is needed if we are to realize the Religion Clauses' basic purpose "to promote and assure the fullest scope of religious liberty and religious tolerance for all and to nurture the conditions which secure the best hope of attainment of that end." Schempp , 374 U.S. at 305,
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 benefit 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 particular way in which the government seeks to enforce mandatory (say, qualification-related) provisions of a particular benefit program? See, e.g. , New Life Baptist Church Academy v. East Longmeadow ,
The majority claims that giving weight to these considerations would be a departure from our precedent and give courts too much discretion to interpret the Religion Clauses. See ante , at 2259 - 2260. But we have long understood that the "application" of the First Amendment's mandate of neutrality "requires interpretation of a delicate sort." Schempp , 374 U.S. at 226,
Nor does the majority's approach avoid judicial entanglement 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 deference to state legislators' choices to avoid such issues altogether. At the same time, it puts States in a legislative dilemma, 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 areas 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 particularly 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 2260; see, e.g. , Walz ,
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 *2291Van Orden ,
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 students 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 concluded 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 education. See Brief for State of Colorado et al. as Amici Curiae 6-7; Brief for State of Maine as Amicus Curiae 10-15. Today'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 majority asserts that States "need not subsidize private education." Ante , at 2261. 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, 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 structured, 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 distinguish 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 religious schools? The majority's rule provides no guidance, even as it sharply limits the ability of courts and legislatures 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 , 403 U.S. at 677,
To revive their as-applied challenge, petitioners rely on Griffin v. School Bd. of Prince Edward Cty. ,
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 maintains that a law's " 'uncomfortable past' must still be '[e]xamined.' " Ante , at 2273 (opinion of ALITO, 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 ----, 140 S.Ct., at 1410 (SOTOMAYOR, J., concurring in part). 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 repeats) is the stubborn fact that the constitutional provision at issue here was adopted in 1972 at a convention where it was met with overwhelming support by religious leaders (Catholic and non-Catholic), even those who examined the history of prior no-aid provisions. See Brief for Respondents 16-27; 6 Montana Constitutional Convention 1971-1972 Proceedings and Transcript, pp. 2012-2013, 2016-2017 (Mont. Legislature and Legislative Council); see also ante , at 2287 - 2288 (BREYER, J., dissenting); 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 Respondents 20.
Dissenting Opinion
The majority holds that a Montana scholarship program unlawfully discriminated against religious schools by excluding them from a tax benefit. The threshold problem, however, is that such tax benefits no longer exist for anyone in the State. The Montana Supreme Court invalidated the program on state-law grounds, thereby foreclosing the 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 Montana 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. Coleman v. Thompson ,
Not only is the Court wrong to decide this case at all, it decides it wrongly. In Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U.S. ----,
I
A
The Montana Supreme Court invalidated a state tax-credit program because it was inconsistent with the Montana Constitution's "no-aid provision," Art. X, § 6(1), which forbids government appropriations for sectarian purposes, including funding religious schools.
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 religion." Lyng v. Northwest Indian Cemetery Protective Assn. ,
Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax-credit program entirely.
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 constitutional 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,
Notably, petitioners did not allege that the no-aid provision 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 Montana's no-aid provision were no longer good law. Petitioners identify no disparate treatment traceable to the state constitutional provision that they challenge because the tax-credit program no longer operates. See Simon v. Eastern Ky. Welfare Rights Organization ,
As another dissenting opinion observes, see ante, at 2279 - 2280 (opinion of GINSBURG, J.), the Court sidesteps these obstacles 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 2254 (majority opinion). In so doing, the Court appears to transform petitioners' as-applied challenge into a facial one. Ante , at 2255 - 2256; see also ante , at 2263 (THOMAS, 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 separation of powers. Article III confines this Court's authority to adjudicating actual "[c]ases" or "[c]ontroversies." See also Allen v. Wright ,
*2295Washington State Grange v. Washington State Republican Party ,
True, on occasion this Court has resolved federal constitutional 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 ,
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 2263. But it is hard to tell what this Court wishes the state court to do. There is no program from which petitioners are currently "exclu[ded]," so must the Montana Supreme Court order the State to recreate one? Has this Court just announced its authority to require a state court to order a state legislature to fund religious exercise, overruling centuries of contrary precedent and historical practice? See Cutter v. Wilkinson ,
The Court views its decision as "simply restor[ing] the status quo established by the Montana Legislature." Ante at 2262, 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 decision replaces a remedy chosen by representatives of Montanans 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 2261, nor otherwise decided the case on federal grounds. The Court's opinion thus turns on a counterfactual hypothetical it is powerless (and unwise) to decide.
II
Even on its own terms, the Court's answer to its hypothetical question is incorrect. The Court relies principally on Trinity Lutheran , which found that disqualifying an entity from a public benefit "solely because of [the entity's] religious character" could impose "a penalty on the free exercise of religion." 582 U.S., at ---- - ----,
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."
Until Trinity Lutheran , the right to exercise one's religion did not include a right to have the State pay for that religious practice. See School Dist. of Abington Township v. Schempp ,
Here, a State may refuse to extend certain aid programs to religious entities when doing so avoids "historic and substantial" antiestablishment concerns. Locke ,
The Court maintains that this case differs from Locke because no pertinent " 'historic and substantial' " tradition supports Montana's decision. Ante , at 2258. But the Court's historical analysis is incomplete at best. For one thing, the Court discounts anything beyond the 1850s as failing to "establish an early American tradition," ante , at 2259, while itself relying on examples from around that time, ante , at 2258. For another, although the States may have had "rich diversity of experience" at the founding, "the story relevant here is one of consistency." Trinity Lutheran , 582 U.S., at ----,
The Court further suggests that by abstaining from funding religious activity, the State is " 'suppress[ing]' " and "penaliz[ing]" religious activity. Ante , at 2260 - 2262. But a State's decision not to fund religious activity does not "disfavor religion; rather, it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns." Trinity Lutheran , 582 U.S., at ----,
Finally, it is no answer to say that this case involves "discrimination." Ante , at 2256 - 2257. 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 ----,
* * *
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 , 374 U.S. at 226,
I respectfully dissent.
A party wishing to expand the scope of the Establishment Clause beyond its meaning at the founding carries the burden of demonstrating that this broader reading is historically sound. Town of Greece v. Galloway ,
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 v. Colorado ,
See U.S. Commission on Civil Rights, School Choice: The Blaine Amendments & Anti-Catholicism 36 (2007).
See T. Anbinder, Nativism and Slavery: The Northern Know Nothings and the Politics of the 1850s, pp. 6-8 (1992).
In its opinion, Montana's highest court stated without explanation that this case is not one in which application of the no-aid provision violates the Free Exercise Clause.
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 2274 (ALITO, J., concurring) (inapt reference to Anatole France's remark).