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John Roberts just bulldozed the wall separating church and state,” a Slate writer announced after the Supreme Court’s Tuesday decision in Espinoza v. Montana. Of course, the chief justice did no such thing. But overheated, demolition-themed headlines are, unfortunately, standard features of today’s commentary on the Court’s legally, historically, and morally sound Religion Clause decisions.

In Espinoza, a five-justice majority ruled, correctly and unsurprisingly, that the Montana Supreme Court violated the First Amendment’s free-exercise guarantee when it struck down a tax credit program that provides tuition assistance to parents who send their kids to private schools. The Montana court invoked and applied a provision of the state constitution that prohibits aid to “sectarian” schools, that is, schools that are “controlled . . . by any church, sect, or denomination.” Although it has been nearly two decades since the Supreme Court of the United States ruled that the federal constitution permits such and similar school-choice measures, the Montana court insisted that the program offended the state’s “guarantee to all Montanans that their government will not use state funds to aid religious schools.”

Writing for the Court, Chief Justice Roberts dropped the other shoe: Just two years ago, in Trinity Lutheran Church v. Comer, the justices held, by a vote of 7-2, that the First Amendment’s prohibition on discrimination against religion did not allow Missouri to exclude a Lutheran preschool from participating in a program that provided shredded recycled tires to nonprofits for safe playgrounds. When Trinity Lutheran was announced, most observers were well aware that the case’s implications went beyond swing sets. And indeed, they do. As Roberts explained in Espinoza, a state rule that “imposes special disabilities on the basis of religious status” or that “disqualif[ies] otherwise eligible recipients from a public benefit ‘solely because of their religious character’” violates the Free Exercise Clause.

Discrimination on the basis of religion is no more excusable when it takes the form of denying tuition benefits than when it involves refusing rubber scraps. So the Court’s conclusion is, as Roberts put it, “unremarkable.” At the same time, the Espinoza ruling is the latest step in a decades-long doctrinal evolution that is as striking as it is welcome.

It is not only headline writers, after all, who have been distracted by the Court’s misguided constitutionalization—and fetishization—of the “wall” metaphor. For too many years, in too many cases, and to the detriment of too many families and schools, Court majorities held that the appropriate differentiation of religious and secular authority—that is, the “separation of church and state”—requires a strict prohibition on financial and other forms of cooperation with religious schools, notwithstanding the valuable role these schools play in the common project of education. More recently, though, Rehnquist and Roberts Courts have steadily steered the relevant doctrines in the direction of neutrality and even-handedness, reminding citizens and litigants alike that cooperation with religious institutions does not constitute an unlawful “establishment” of religious authority. Neither the outdated anti-aid amendments in many state constitutions nor the various no-funding myths constructed around Thomas Jefferson’s “Letter to the Danbury Baptists” or James Madison’s “Memorial and Remonstrance” justify, let alone require, categorical religion-based exclusions from public-benefit programs.

Although the Court’s legal conclusion did not rely on the history, context, and motivations of these provisions, Justice Samuel Alito performed a public-education service by detailing the extent to which anti-Catholic fears and prejudices distorted, for at least a century, the debates and practices regarding school funding. Whether or not the nativist motives of those who favored the so-called “Blaine Amendments” are relevant to these amendments’ constitutionality, to be clear-eyed about these motives is essential to understanding the development of American education and the course and content of American church-state relations. 

The implications and effects of Espinoza could be both salutary and significant. Anti-aid provisions like Montana’s have blocked or hamstrung many state and local educational-reform initiatives. The justices’ decision does not require school-choice programs, of course, but it does help to move the issue from the courts of law to the courts of public opinion, where it belongs. Legislatures and other politically accountable actors will be more free to experiment with policies that enhance and respect educational pluralism, opportunity, and equality. As a result of the economic and other challenges caused by the coronavirus outbreak, hundreds of Catholic schools are hanging by a thread. If they closed, the costs—to children, to communities, and to the Church—would be crushing.

The various amicus briefs filed in support of Montana’s exclusionary rule and the commentary on the Court’s ruling reveal that, for many, more than abstract commitments to church-state separation are at stake. For many, what is objectionable about the Montana tax-credit program is not that it benefits parents who choose religious schools but that it helps those who select “discriminatory” schools. By supporting decisions to attend schools that, for example, promote traditional positions on controversial ethical questions and regard teachers as playing a crucial role in religious formation and ministry, the argument goes, governments are effectively subsidizing invidious discrimination. 

So supporters of institutional diversity and religious freedom in education have much to celebrate after Espinoza. But they should also be prepared for renewed efforts to impose, through conditions on benefits, thick and far-reaching understandings of the nondiscrimination norm that could well conflict with schools’ mission, character, and ethos. Indeed, the Court has already agreed to hear a case this fall that involves such conditions. Stay tuned. 

Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame.

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