Espinoza: Roberts v. Thomas on the Future of Religious Liberty Jurisprudence

July 2, 2020

Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020) (Roberts, C.J.).
Response by Professor Vincent Phillip Muñoz
Geo. Wash. L. Rev. On the Docket (Oct. Term 2019)
Slip Opinion | SCOTUSblog

Note: Professor Muñoz’s work was cited in the Chief Justice’s majority opinion and in Justice Thomas’s concurrence. See slip op. at 15 n.3; id. at 3 (Thomas, J., concurring).

Espinoza: Roberts v. Thomas on the Future of Religious Liberty Jurisprudence

In Espinoza v. Montana,¹ Chief Justice John Roberts finally joined his four conservative colleagues to deliver the type of victory Donald Trump promised social conservatives during the 2016 presidential campaign. The Court ruled, 5–4, that the state of Montana violated the First Amendment when it excluded private religious schools from participating in scholarship programs that offer tax benefits to benefactors. The ruling would seem to open the door to more government financing of religious education through tax credits and possibly even direct aid.

Many conservative commentators have agreed with Secretary of Education Betsy DeVos, who called the decision “a historic victory.”² It was a victory for those who would like government to support religious education, but it was not nearly as historic as it could have been. Chief Justice Robert’s fidelity to stare decisis and his concern for judicial minimalism restrained the Court from issuing the landmark opinion that Justice Clarence Thomas is ready to write.

The case involved a $150 tax credit passed by the Montana state legislature in 2015 for state residents who donate to organizations that award scholarships for private school tuition. The Montana state constitution bars government aid to any school “controlled in whole or in part by any church, sect, or denomination.”³ To reconcile the tax credit with the state constitution, Montana’s Department of Revenue prohibited families from using scholarship funds at religious schools. That prohibition, the Court declared, violated the First Amendment’s Free Exercise Clause.

Writing for a majority that includes Justices Thomas, Alito, Gorsuch, and Kavanaugh, the Chief Justice found that Montana unconstitutionally discriminated against religious observers on account of their religious “status.”⁴ “The Free Exercise Clause,” the Court’s opinion states, “‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status.’”⁵ Citing Trinity Lutheran v. Comer,⁶ the Court reaffirmed 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,’”⁷ a standard that the Court found Montana failed to meet in this case.

While crafting the Free Exercise Clause into a semi-non-discrimination provision, the Chief Justice failed to address one of the primary reasons states discriminate against religion. Montana acted pursuant to its state constitution’s Blaine Amendment. But other states that lack such provisions, as well as the federal government, have also found it necessary to discriminate against religion in order to comply with the Supreme Court’s Establishment Clause jurisprudence.

In Everson v. Board of Education⁸ (1947), the Court declared that the Establishment Clause erects a “wall of separation” between church and state.⁹ In Lemon v. Kurtzman¹⁰ (1971), the Court fortified that wall by crafting a three-part test. Under the Lemon test, for a law to be found constitutional it must (1) have a legitimate secular purpose, (2) not have the primary effect of either advancing or inhibiting religion, and (3) not result in an excessive entanglement of government and religion. Justice O’Connor, who for years exercised the decisive fifth vote in Establishment Clause cases, reformulated the Lemon test into her Endorsement test: the state cannot endorse religion or “send[] a message to nonadherents [of religion] that they are outsiders [or] not full members of the political community.”¹¹ The surest way to comply with Lemon’s prohibition against advancing religion and O’Connor’s vague rule against perceptions of endorsement of religion has been for state actors to exclude religion from the public square, including from state-funded programs.

The Supreme Court has not always followed Lemon or its progeny. In some cases, such as the legislative chaplaincy case, Marsh v. Chambers¹² (1983), the Court simply pretended the test did not exist. In other cases, such as Elk Grove Unified School District v. Newdow¹³ (2004), which examined the inclusion of “under God” in public-school recitations of the Pledge of Allegiance, Justice O’Connor proposed exceptions to the rule. In still other cases including the school choice case, Mitchell v. Helms¹⁴ (2000), the Court held that state financial aid to religious schools did not run afoul of precedents if it was the result of “the genuinely independent and private choices of individuals.”¹⁵

Chief Justice Robert’s Espinoza opinion leaves this entire body of law (if it can be called that) in place. As it now stands, the Free Exercise Clause prohibits governmental discrimination against religious individuals and institutions on account of their religious status, and Establishment Clause precedents prohibit the government from advancing religion or endorsing religion. It seems that to comply with the Free Exercise Clause, a state must fund Catholic and other religious schools if it supports any private schools; but if such support advances religion or is perceived by a reasonable observer to endorse religion, it violates the Establishment Clause. How, or even if, a government can satisfy these conflicting demands is not at all obvious.

This legal unintelligibility is not new. Twenty-five years ago, Justice Thomas wrote that the Court’s Establishment Clause rulings were in “hopeless disarray.”¹⁶ Espinoza adds to a long line of cases that have made the Court’s church-state jurisprudence a mess. Surely Chief Justice Roberts is not oblivious to this, but his devotion to stare decisis forecloses the possibility of doing anything significant about it.

Justice Thomas, on the other hand, sits ready and willing to write a landmark church-state opinion that would bring coherence to the law by overturning the Establishment Clause precedents that, in his words, “hamper free exercise rights.”¹⁷ In his sharp Espinoza concurring opinion (joined by Justice Gorsuch), Thomas declared again his view that Everson and subsequent Establishment Clause decisions that prohibit government from expressing any preference for religion are “unmoored from the original meaning of the First Amendment.”¹⁸ In a series of opinions dating back nearly twenty years, Thomas has argued that the original meaning of the Establishment Clause primarily concerned federalism—that is, that the original purpose of the Establishment Clause “served only to ‘protect States, and by extension their citizens, from the imposition of an established religion by the Federal Government.’”¹⁹ To apply against the states a provision originally designed to protect the authority of the states is thus nonsensical.

The logical implication of Justice Thomas’s originalism would be the disincorporation of the Establishment Clause. States would be free to aid religion or not, subject only to the restrictions imposed by their own state constitutions. While Thomas seems willing to go that far, it’s doubtful that many of his fellow justices would. Given that reality, Thomas contends that if the Establishment Clause is to remain incorporated to apply against the states, “it would only protect against an ‘establishment’ of religion as understood at the founding, i.e., ‘coercion of religious orthodoxy and of financial support by force of law and threat of penalty.’”²⁰

I have presented elsewhere the Founding-era history that supports Thomas’s federalism interpretation of the Establishment Clause’s original meaning. As Thomas notes in his Espinoza concurrence, evidence pertaining to the original meaning of the Fourteenth Amendment and whether it was designed to apply the Establishment Clause against the states is “mixed.”²¹ Whatever ambiguities exist about its incorporation, it is certainly true that the Establishment Clause was not originally designed to create a “wall of separation” between church and state, certainly not as conceived and constructed by the Supreme Court in Everson and Lemon.

Justice Roberts might have delivered a victory to religious believers in Espinoza, but for those whose fidelity is to the Constitution (as opposed to what the Court has previously said about the Constitution) there is precious little “historic” about his majority opinion.

Vincent Phillip Muñoz is the Tocqueville Associate Professor of Religion & Public Life in the Department of Political Science at the University of Notre Dame. He is the founding director of Notre Dame’s undergraduate minor in Constitutional Studies and directs Notre Dame’s Tocqueville Program for Inquiry into Religion and Public Life.

Muñoz writes and teaches across the fields of constitutional law, American politics, and political philosophy with a focus on religious liberty and the American Founding. His first book, God and the Founders: Madison, Washington, and Jefferson (Cambridge University Press, 2009) won the Hubert Morken Award from the American Political Science Association for the best publication on religion and politics in 2009 and 2010. His First Amendment church-state case reader, Religious Liberty and the American Supreme Court: The Essential Cases and Documents (Rowman & Littlefield) was first published in 2013 (revised edition, 2015) and is being used at Notre Dame and other leading universities.

Muñoz’s current project is a scholarly monograph on the natural right of religious liberty and the original meaning of the First Amendment’s Religion Clauses. Articles from that project have appeared in American Political Science Review, The Harvard Journal of Law and Public Policy, Notre Dame Law Review, American Political Thought, and the University of Pennsylvania’s Journal of Constitutional Law.

No. 18–1195 (U.S. June 30, 2020).
Press Release, Betsy DeVos, Secretary, Department of Education, Secretary DeVos on Espinoza: Religious Discrimination is Dead (June 30, 2020), https://www.ed.gov/news/press-releases/secretary-devos-espinoza-religious-discrimination-dead.
Mont. Const., art. X, § 6(1).
Espinoza, slip op. at 9–10.
Id. at 8 (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019–20 (2017)).
137 S. Ct. 2012 (2017).
Espinoza, slip op. at 8 (quoting Trinity Lutheran, 137 S. Ct. at 2021).
330 U.S. 1 (1947).
Id. at 16 (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)).
403 U.S. 602 (1971).
See Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).
463 U.S. 783 (1983).
542 U.S. 1 (2004).
530 U.S. 793 (2000).
Id. at 810 (quoting Agostini v. Felton, 521 U.S. 203, 226 (1997)).
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J., concurring).
Espinoza, slip op. at 1 (Thomas, J., concurring).
Id. at 2.
Id. (alterations omitted) (emphasis in original).
Id. (quoting Town of Greece v. Galloway, 572 U.S. 565, 608 (2014) (Thomas, J., concurring in judgment)).
Id.

Recommended Citation
Vincent Phillip Muñoz, Response, Espinoza: Roberts v. Thomas on the Future of Religious Liberty Jurisprudence, Geo. Wash. L. Rev. On the Docket (July 3, 2020), https://www.gwlr.org/espinoza-roberts-v-thomas-on-the-future-of-religious-liberty-jurisprudence/.