Espinoza v. Montana (2019): Should My Public Tax Dollars Pay for Your Religious Private School Education?
The attempt to separate religion from public state affairs has been a point of contention in United States jurisprudence since the founding of our nation, and continues to be one today as the Supreme Court attempts to clearly outline the scope of religious freedoms. Founding Father Thomas Jefferson interpreted the First Amendment as the building of a wall between church and state. [1] Reynolds v. United States (1878), a Supreme Court of the United States case that outlawed polygamy, affirmed Jefferson’s interpretation that the objective of the establishment clause of the First Amendment was to establish a clear separation between church and state. [2] Although this intention was clarified, the Court has since continuously struggled to define what this separation entails and how to properly identify the scope of the freedom of religious expression.
The desire to separate church and state, as explicitly outlined in most state constitutions, was a direct response to Irish-Catholic immigration to the United States in 1845. [3] This influx of Irish-Catholic immigrants heightened religious tensions between Protestants and Catholics due to differing beliefs about the role religion should have in a public affairs. Anti-Catholic sentiments resulted out of the concern to preserve public education independent of religious influence. Consequently, in 1875, Representative of Maine James Blaine attempted to prevent states from using public funding for religious education by establishing what is now known as the Blaine Amendment. Although never passed, the Blaine Amendment inspired states to amend their own constitutions to block government funding for religious education. [4] Today, thirty-seven states have some version of the Blaine Amendment to provide a restraint on government aid that states are entitled to have in order to serve their specific demographic.
The attempt to separate church and state continues to persist even now as seen in Espinoza v. Montana State of Revenue, a case heard in October of 2019 by the Supreme Court of the United States. The petitioner Kendra Espinoza, a low-income mother, applied for scholarships from a state tax-credit program to keep her children enrolled in a private Christian school. [5] The program prohibits scholarship recipients from using their scholarships towards religious schools, pursuant to Article X Section 6 of Montana’s Constitution. The petitioners claimed Montana’s state constitution violates the religious clauses of the First Amendment because it prohibits “direct or indirect” public funding of religiously affiliated educational programs. [6] Rejecting the petitioners’ claim, the Montana Supreme Court struck down the entire tax-credit program. In Espinoza, the Supreme Court will have the opportunity to redefine the relationship between religion and government aid. In order to uphold other precedents, the Court should side with Montana’s decision because states have the right to determine which categories of private education they wish to fund, furthermore their statute makes explicit a separation of government aid in regard to religious education. Each state has specific demographics and the application of laws will differ based on those different demographics. States must be able to serve their people’s interests because the purpose of a state is to make an ordered society flourish. [7]
Espinoza is not the first time the constitutionality of religious funding has been challenged in the Supreme Court, and it will most likely not be the last time. One of the most prominent decisions regarding the limits of religious funding was decided in Locke v. Davey. [8] In this 2003 US Supreme Court case, a Washington state scholarship gave money to high-achieving students on the condition that the money could not be applied towards a degree in devotional theology. Noting the clear connection to religious freedom, student Joshua Davey challenged the scholarship, claiming that Washington’s ban on funding religious instruction violated the free exercise clause of the First Amendment. Ultimately, the Court sided with the state and allowed the funding of secular college degrees, even if it means excluding devotional theology degrees, since nothing in the scholarship nor state constitution "suggests animus towards religion." [9] This set the precedent that a law may exclude religion-affiliated institutions as long as it does not express hostility towards religion.
Furthermore, the limits of the establishment clause were refined in Trinity Lutheran Church of Columbia, Inc. v. Comer, a 2017 US Supreme Court case. Trinity Lutheran Church of Columbia applied for a state grant for recycled tires to resurface their preschool center playgrounds. They were denied based on Article I Section 7 of Missouri’s Constitution, which states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church.” [10] This section intended to keep government aid away from religious affiliations. The Court, however, ruled in favor of Trinity Lutheran Church on the grounds that the exclusion of churches from an otherwise neutral and secular aid program does indeed violate the free exercise of religion. [11] This was the first time that the Supreme Court has ruled in favor of free exercise over the establishment clause. This set the precedent that neutral and generally applicable laws may be upheld even if they hamper religion. However, laws that deny an otherwise generally available benefit because of religious status are unconstitutional. [12] In this case, Trinity Lutheran Church sought to provide a neutral service to enhance the lives of citizens and refusal of their application denies an otherwise generally available benefit solely on the grounds of religious status.
Similarly, in Locke v. Davey, a state’s right was determined to include choosing which types of education to fund, as long as the state does not incite animosity towards the type of education. The federal government cannot compel a state to publicly fund religious education because states vary on religious demographics. States must be able to choose the types of education to fund based on their own specific population needs. As James Madison wrote in Federalist No. 45, the powers reserved to states “concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” [13] In more religious states, prosperity of the people would mean funding religious interests, and thus tax dollars would be divided unequally depending on the number of private religious schools and private nonsectarian schools.
On the other side, proponents in favor of government funding for religious education will often cite the “child benefit” argument. In Cochran v. Louisiana State Board of Education, a 1930 US Supreme Court case, tax-payers challenged state laws that asserted all children in Louisiana, regardless of whether they attended public schools, private religious, or nonsectarian schools, would receive textbooks at no cost. These textbooks were paid for by tax dollars, which led tax-payers to argue that the laws violated their rights under the due process clause of the Fourteenth Amendment. The Supreme Court ruled that the state was providing a public benefit, and therefore taxation that including funding textbooks for private religious schools was not unconstitutional. [14] This decision effectively established the “child benefit” argument: free textbooks are for every child’s benefit, not exclusive to religious education. However, the “child benefit” argument implies that without a specific resource, the child’s experience would be significantly impaired. When analyzing whether a religious institution necessitates government funding based on the “child benefit” argument, the Court must determine whether the resource does significantly benefit a child’s life or whether there are acceptable alternatives.
In the Espinoza decision, the justices will need to settle the question of whether the U.S. Constitution requires states to allocate government aid to religious schools, and whether states may include prohibitions in their constitutions. A rule in favor of Espinoza could mobilize religious school proponents like current secretary of education Betsy DeVos to funnel more government money towards funding private education, creating a space for religion in public affairs. [15] Espinoza v. Montana is an opportunity for the Supreme Court to clarify the relationship between the free exercise clause and the establishment clause. This is the chance to further explain how separate church and state really should be in accordance with the framers’ intent and the First Amendment.
[1] “Jefferson's Letter to the Danbury Baptists The Final Letter, as Sent.” Jefferson's Letter to the Danbury Baptists (June 1998) - Library of Congress Information Bulletin. Accessed October 30, 2019. https://www.loc.gov/loc/lcib/9806/danpre.html.
[2] “Reynolds v. United States, 98 U.S. 145 (1878).” Justia Law. Accessed October 20, 2019. https://supreme.justia.com/cases/federal/us/98/145/.
[3] John French, "Irish-American Identity, Memory, and Americanism During the Eras of the Civil War and First World War" (2012). Dissertations (2009). Paper 195. http://epublications.marquette.edu/dissertations_mu/195
[4] Margo A. Borders “The Future of State Blaine Amendments in Light of Trinity Lutheran: Strengthening the Non-Discrimination Argument” 93:5 Notre Dame Law Review 2141 (2018)
http://ndlawreview.org/wp-content/uploads/2018/08/12-Borders.pdf
[5] Espinoza v. Montana Department of Revenue, Docket No. 18-1195 U.S. (2019)
[6] Matheson, Dale, and Montana Legislative Services. Montana Constitution, Article X, Section 6. Aid prohibited to sectarian schools. Accessed October 30, 2019. https://leg.mt.gov/bills/mca/CONSTITUTION/X/6.htm.
[7] Mark R. Rutgers "The Purpose of the State." Administrative Theory & Praxis 30, no. 3 (2008): 349-54. http://www.jstor.org/stable/25610939.
[8] Locke v. Davey, 540 U.S. 712 (2004)
[9] “Locke v. Davey, 540 U.S. 712 (2004).” Justia Law. Accessed October 23, 2019. https://supreme.justia.com/cases/federal/us/540/712/#tab-opinion-1961430.
[10] “Article I, Missouri Constitution.” Ballotpedia. Accessed October 30, 2019. https://ballotpedia.org/Article_I,_Missouri_Constitution.
[11] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012
[12] Miranda C. Lewis, “Beyond the Playground: Assessing the Future of Church-State Relations After Trinity Lutheran Church v. Comer” Loyola Law Review
[13] The Avalon Project: Federalist No 45. Accessed October 27, 2019. https://avalon.law.yale.edu/18th_century/fed45.asp.
[14] Cochran V. Louisiana State Board Of Education, 281 U.S. 370 (1930)
[15] Emma Green, “Your Neighbor's Christian Education, Courtesy of Your Tax Dollars.” The Atlantic. Atlantic Media Company, October 17, 2019. https://www.theatlantic.com/politics/archive/2019/10/supreme-court-private-schools/599956/.