Roberts’ Decision in Espinoza Case Undermines Protection of Church-State Separation; Will Damage Public Education

On Tuesday, the U.S. Supreme Court released a long awaited decision in the church-state separation case of Espinoza v. Montana Department of Revenue. Chief Justice John Roberts wrote the majority opinion in the 5-4 decision. NY Times Supreme Court reporter, Adam Liptak quotes Roberts’ argument: “‘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.’ In dissent, Justice Sonia Sotomayor said the majority opinion ‘weakens this country’s longstanding commitment to a separation of church and state beneficial to both.'”

Although historically, religious liberty and church-state cases have been decided on the basis of the First Amendment’s “establishment clause,” this week’s decision rests on what’s known as the “free exercise clause.”

In a particularly lucid explication of this week’s decision, VOX’s Ian Millhiser explains: “The First Amendment places two limits on the government’s interaction with religion: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’… Thus, the First Amendment’s Establishment Clause limits the government’s ability to advance religion, and the free Exercise Clause limits the government’s ability to target people of faith. The government is simultaneously obligated both to stay out of religious matters and to protect the rights of the faithful—a dual obligation that courts have often found difficult to reconcile.”

Millhiser continues, explaining that Roberts’ decision rests on a 2017 precedent: “As Roberts argues in his opinion, the result in Espinoza flows from the Court’s previous decision in Trinity Lutheran Church v. Comer... which held that the state of Missouri could not exclude religious organizations from a state program that offered ‘grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.’… According to Roberts, Trinity Lutheran reached 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.’ Just as the Missouri recycled tires program ‘discriminated against the Church simply because of what it is—a church,’ the Montana constitution ‘bars religious schools from public benefits solely because of the religious character of the schools.'”

The current Espinoza case was brought by several mothers whose children are enrolled in the Stillwater Christian School in Kalispell, Montana.  Plaintiffs were represented by—and clearly recruited by—the Institute for Justice, a far-right, libertarian law firm which, for years, has set out to challenge First Amendment protection of the separation of religion from government. In this case, the Montana Supreme Court had already partially shut down the tuition tax credit program at issue in the case.  Writing for Education Dive, Linda Jacobson reports that the program will now continue: “In Montana, the ruling means the scholarship program continues because the Montana Supreme Court granted a partial stay, allowing existing scholarship funds to be distributed while awaiting the U.S. Supreme Court’s decision.”

The Espinoza decision will affect the 37 states with what are known as Blaine Amendments in their state constitutions. Jacobson explains: “The statutes are named for James G. Blaine, a U.S. representative who tried, following the Civil War, to get a bill through Congress that would have denied any aid to sectarian schools. His legislation failed, but efforts to write such language into state constitutions were clearly more successful.”

Why are supporters of public education so concerned about the implications of this case? In the first place, voucher programs drain needed tax dollars out of public schools. In Ohio, for example, a state that already permits public funds to flow to religious schools, EdChoice vouchers extract $4,650 for each elementary and middle school voucher and $6,000 for each high school voucher—right from the local public school district’s budget.

Another serious problem with vouchers is that the law protects students’ rights in public schools, but the same laws do not protect students enrolled in private schools. Writing for Slate, Mark Joseph Stern worries that now, after Espinoza: “Taxpayers in most of the country will soon start funding overtly religious education—including the indoctrination of children into a faith that might clash with their own conscience.  For example, multiple schools that participate in Montana’s scholarship program inculcate students with a virulent anti-LGBTQ ideology that compares homosexuality to bestiality and incest.  But many Montanans of faith believe LGBTQ people deserve respect and equality because they are made in the image of God. What does the Supreme Court have to say to Montanans who do not wish to fund religious indoctrination that contradicts their own beliefs?”

Stern continues, examining how quickly Supreme Court opinions have reversed Constitutional interpretation of church-state issues: “This decision flips the First Amendment on its head. The amendment’s free exercise clause protects religious liberty, while its establishment clause commands that the government make no law ‘respecting an establishment of religion.’  Just 18 years ago in Zelman v. Simmons-Harris, a bare majority of the Supreme Court ruled that, under the establishment clause, states were allowed to fund private schools through vouchers or tax credits, over vigorous dissents from the four liberal justices. Now the court has declared that, under the free exercise clause, most states are compelled to fund private religious schools”—that is if they choose to use vouchers to divert tax dollars to any private schools.

The Baptist Joint Committee for Religious Liberty was joined in an amicus brief in the Espinoza case by the Evangelical Lutheran Church in America, the General Synod of the United Church of Christ, and the Stated Clerk of the Presbyterian Church, U.S.A.  After the Supreme Court’s decision on Tuesday, the Baptist Joint Committee General Council, Holly Hollman declared: “The decision’s high concern for equal treatment of religious schools disregards the distinctiveness of religion in our constitutional order and contradicts the special treatment that religion rightfully receives to keep government from influencing and interfering with it.  In a shell game that focuses on preventing discrimination based on religious status, the Court fails to recognize Montana’s legitimate interest in protecting religious freedom by avoiding funding religious education.”

Forward, a Jewish publication, quotes Nathan Diament of the Orthodox Union: “It’s a great help to our ongoing advocacy efforts to have state and local governments provide a fair and equitable share of support for our K-12 schools in the Jewish community.”

However Forward also quotes Rabbi Jonah Dov Pesner, on behalf of the Religious Action Center of Reform Judaism: “We are deeply disappointed in the Supreme Court’s decision to invalidate Montana’s prohibition on state funding of private religious schools… We joined an amicus brief in support of Montana’s prohibition on financial support for religious education, because not only do tuition tax credits and other types of school vouchers divert desperately needed funding from public schools, these programs also violate separation of church and state when such funding is directed towards religious schools.”

Americans United for Separation of Church and State responded to Tuesday’s Espinoza decision: “Let’s not forget that vouchers were first developed to evade integration orders and fund segregation academies specifically designed to keep black and white students apart.  Even now, national data show that private schools tend to be more segregated than similarly situated public schools and enroll higher populations of white students compared to public schools… Three-quarters of state constitutions contain provisions intended to protect taxpayers from being forced to fund religion, a long-held value. The Supreme Court’s decision sets a dangerous precedent….  Now that the Supreme Court has ruled that taxpayer-funded vouchers must fund private religious schools if they fund secular private schools, it is more important than ever that we fight to oppose all private school voucher programs. Public dollars should fund public schools, which educate 90% of our nation’s students… We must reject the Trump-DeVos agenda of private school voucher programs that divert desperately needed resources away from public schools in order to fund private religious instruction.”

Over many years, when plans to establish voucher programs have been set up as ballot issues,  American citizens have universally voted to defeat the proposals. My suspicion is that most American’s favor the protections promised in the First Amendment’s “establishment clause” rather than accepting Roberts’ convoluted argument justifying vouchers under the “free exercise clause.”