Espinoza and School Vouchers: A (Long) Summary

Espinoza v. Montana Department of Revenue
So I did not get to do my NPR interview, which would certainly have made me wildly famous.  But since I spent a significant amount of time reading the briefs and then the seven (!!) different opinions in the case, I figured I would spend a little more time summarizing the opinion than I might otherwise.
I start with a caveat:  while as a public education advocate I am not a real big fan of the outcome of this case, I always try, as an attorney, to keep my focus on the legal discussions in a case.  It may surprise some (maybe not) to learn that while I am very happy with the outcome of the Bostock (LGBTQ Title VII) case, there are some aspects of Justice Gorsuch’s majority opinion that I find somewhat dubious (from a legal viewpoint), and I think the dissenting Justices – including Justice Kavanaugh – make some very good legal points.  And to that end, I will start the analysis of the Espinoza decision by saying, I think that Chief Justice Roberts is pretty much right, from a strict legal viewpoint.
Espinoza – the Facts
To recap, Espinoza involved a challenge to a Montana tax credit program, which gave taxpayers a tax credit of up to $150 for donations to a participating “student scholarship organization.”  Such organizations could then use the donations to award scholarships to children to use at private schools. Such tax credit/scholarship programs are the current scheme du jour of the voucher movement, since they at least facially allow state money to indirectly end up at private religious schools without the state sending the money directly.
The Montana law as originally written allowed families to use the scholarships at any private schools, but Montana’s state constitution has a “no aid” provision, which prohibits “direct or indirect appropriation or payment” of public funds to “sectarian” entities, including schools.  Charged with implementing the scholarship program, the Montana Department of Revenue adopted Rule 1, which essentially prohibited families from using the scholarships at religious schools.  This lawsuit followed, and the Montana Supreme Court ruled that the scholarship program as originally written violated the no-aid provision of the Montana Constitution, but that because the program could not “under any circumstances” be deemed consistent with the state constitution, the entire program was invalidated.  End result:  nobody gets scholarships, to use at any type of private school.
The Majority Opinion
In a 5-4 decision, Chief Justice John Roberts wrote the majority opinion, which was (not surprisingly) joined by the conservative side of the court:  Justices Thomas, Gorsuch, Alito and Kavanaugh.  The Court ruled that the application of the no-aid provision of the Montana Constitution violated the Free Exercise rights of the Plaintiffs, by discriminating against them solely based on the religious status of the schools at which they wanted to use the scholarships for which they were otherwise qualified.
In light of previous Supreme Court decisions, Justice Roberts’ opinion is fairly logical and straightforward:  under cases that reached their 2002 apex in Zelman v. Simmons-Harris, the Court had ruled that “where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.”
Likewise, in Trinity Lutheran Church of Columbia, Inc. v. Comer, a significant case from 2017 involving a challenge to a Missouri program that provided grants to help nonprofit organizations pay for playground resurfacing, but excluded religious organizations mainly based on their status of being religious, the Court had held 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 strict scrutiny.  Trinity Lutheran enshrined what to me appears to be a growing movement to replace the oft-criticized (and undoubtedly complicated) Lemon test with a simpler neutrality test:  if schools don’t want to open their facilities for use by outside groups, that’s fine — but if you do, you can’t keep out religious groups just because they are religious (Lamb’s Chapel, Milford Central School).  If local government entities don’t want to open their legislative sessions with prayers, they don’t have to – but if they do, they can’t tell the speakers what to say (Town of Greece).  Cities don’t have to give shredded tires to private entities to use at playgrounds – but if they do, they can’t exclude entities just because they happen to be religious (Trinity Lutheran).  And states don’t have to give vouchers (in whatever form) to families to use at private schools—but if they do, they can’t exclude religious schools, just because they happen to be religious.
Free Exercise Clause Ascendant
It has always been widely acknowledged that there is an inherent tension between the Establishment Clause and the Free Exercise Clause.  Some courts and scholars see a false dichotomy between the two:  that practices are either prohibited by the Establishment Clause or mandated by the Free Exercise Clause, but as Justice Roberts acknowledged, the majority view is that there is “‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.”  In other words, there is a gray area between the “can’t” and the “must,” where the government can allow certain practices, but isn’t required to.
Given that the Montana scholarship program was pretty much consistent with the “private choice” program approved in Zelman, but also seemed to discriminate against religious entities in violation of Trinity Lutheran, ultimately in my opinion the only real question in Espinoza was whether the Court would interpret the Establishment Clause to allow states to adopt state constitutional provisions that call for a stricter separation of church and state than that called for by the United States Constitution – whether such provisions are allowed as “play in the joints” (an issue not raised in Trinity Lutheran).  Indeed, Montana argued that it met the strict scrutiny test, because the no-aid provision satisfied Montana’s interest in separating church and state “more fiercely” than the federal constitution.  However, Justice Roberts rejected that argument, noting that a disestablishment interest in greater separation cannot qualify as compelling if it violates the free exercise rights of citizens by discriminating against them on the basis of religion (which he had already found it did).  He also rejected the argument that the no-aid provision actually promoted religious freedom by keeping the government out of the operations of religious organization (based on the notion that state aid always comes with strings), finding such an argument paternalistic (my word, not his), since any religious organization worried about such strings can always opt not to participate in the program in the first place (and many do).
Finally came the argument that many states use to justify their own versions of a no-aid provision:  that they are necessary to protect funding for the public school system.  Justice Roberts did not seem to have any problems with that argument in general…but he found it to be “fatally underinclusive” in Montana’s case, since Montana was also willingly diverting money to private non-religious schools.  As he quite logically noted, “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.”
Underlying Espinoza – and indeed Trinity Lutheran and many of the Court’s recent religion cases – is a debate over how to balance the Establishment Clause and the Free Exercise Clause.  It has been suggested that in the 1960’s, the Brennan Court shifted that balance heavily in favor of the Establishment Clause, in an effort to get what the Court perceived as too much religion out of the public schools (it is no coincidence that this is when many Protestant churches, who had long been in unofficial control of the public school system, suddenly realized that they might need a private school system of their own, much as the Catholics realized in the 1800’s).  This ultimately resulted in the Lemon test, which can be extremely difficult to satisfy, and which led many long-standing practices (such as starting schools with a morning prayer) to be found unconstitutional.
The current Court, however, appears determined to shift the balance more towards the Free Exercise Clause, which benefits individual rights over state control.  You can argue whether this is an inappropriate attempt by conservatives to get religion back in the schools, or a more neutral effort to re-balance the two Clauses that were unbalanced by the Brennan Court, but this dispute underlies Espinoza as well. Justice Roberts obviously felt that the Free Exercise rights of the individual plaintiffs not to be discriminated against on the basis of their religious status outweighed any Establishment Clause concerns about churches benefiting (however indirectly) from state funding.
Justices Breyer and Sotomayor each wrote separately in dissent, to express their views that the “play in the joints” between Establishment Clause and Free Exercise Clause would allow a stronger state constitution separation of state and church provision.  Justice Breyer, as he has since his swing votes in the Van Orden and McCreary County Ten Commandment cases, favors a “flexible, context-specific approach” that “may well vary” from case to case.  Justice Sotomayor argued that “[t]he relevant question had always been not whether a State singles out religious entities, but why it did so….Here, a State may refuse to extend certain aid programs to religious entities when doing so avoids ‘historic and sub­stantial’ antiestablishment concerns.”  Justice Roberts rejected both tests, noting that they were to a degree outcome determinative, case-by-case tests that would provide very little guidance to anyone on this issue.
Blaine Amendments
There are many oddities about the facts underlying the Espinoza case that I have not mentioned yet, that parties in future lawsuits will undoubtedly point to to try to distinguish the case.  You will note that I have not called Montana’s no-aid provision a “Blaine Amendment.”  “Blaine Amendment” is the term used to lump together state no-aid provisions passed in the 1800’s, and is named after House Speaker James Blaine, who tried to get a similar amendment to the United States Constitution passed in 1875.  After passing the House overwhelmingly but failing to get a 2/3s vote in the Senate (by 4 votes), similar amendments were passed by the states, some willingly and some as a condition for entering the Union.
There is no doubt that Blaine Amendments have a very dark history, as detailed by Justice Alito in his concurring opinion, since many of them were motivated by significant anti-Catholic bias, during the struggle between the Protestant and Catholic churches for control of the then-American public school system.  But some state constitutional provisions are unfairly lumped in with the Blaine Amendments (some long pre-date that period of American history, going all the way back to the founding), and Montana’s no-aid provision isn’t technically a Blaine Amendment, since it was re-enacted in 1972 and arguably for more legitimate reasons (although Justice Alito expressed skepticism that “the State actually confronted the provision’s tawdry past in reenacting it.”)
By the way, Justice Alito’s concurring opinion is actually quite funny: he starts out by noting that in an earlier decision this year (Ramos v. Louisiana), he argued in dissent that the original motivation behind a law, no matter how deplorable, is not usually relevant, particularly when the laws have been re-adopted since that time.  “But I lost” that argument, he concedes, and so if it mattered there, you’re sure gonna hear about it here (“If the original motivation for the laws mattered there, it certainly matters here.”)  He then writes a lengthy and quite interesting (if not by his own assertions relevant) history of anti-Catholicism in the United States in general, and behind the Blaine Amendments specifically – but ends his opinion without ever offering any explanation as to how any of what he just outlined impacts the constitutionality of the provisions in question.
Another oddity to the Espinoza decision was, as noted above, that to remedy the conflict between the tax credit/scholarship program and the no-aid provision, the Montana Supreme Court struck down the entire program, so at the end of the day, nobody got scholarships for any schools.  Montana leaned hard on this fact in their brief to the Supreme Court, and three Justices voting in dissent (Ginsburg, Kagan and Sotomayor) essentially found that the case was moot because there was no longer any discrimination between private religious and non-religious schools:  “There simply are no scholarship funds to be had” (Ginsburg).  Justice Roberts rejected this argument, however, noting that the Montana Supreme Court’s error occurred at the beginning of its opinion, where it failed to immediately recognize that the application of the no-aid provision violated the Free Exercise Clause.  Had the Montana Supreme Court recognized this, then presumably the plaintiffs would have ended up getting their scholarships (on any equal basis with everyone else), instead of nobody getting them at all.
Justice Thomas and the Establishment Clause
For the record, Justice Thomas wrote separately to concur in the decision, but to explain his long-held theory that virtually every judge in the county is interpreting the First Amendment wrong; that that the Establishment Clause was only ever intended to prevent the federal government from establishing a religion; and that it therefore does not apply to the States.  If this sounds petty radical, it is, but it wasn’t very surprising, since Justice Thomas argues this a lot.  What was a little surprising was that Justice Gorsuch joined him in his decision.  This bears watching, because if Justice Thomas could ever get a majority for his “everyone is getting it completely wrong” argument, that would be a major shift in First Amendment jurisprudence.
“Status” versus “Use”
If you are still reading this increasingly long blog post, then I can only assume you are actually interested in the legal details of these First Amendment issues…so I shall turn to a complicated issue involving “status” versus “use,” which is largely what Justice Gorsuch wrote in concurrence to address.   You see, complicating all of these issues, particularly for the conservatives, is a 2004 case called Locke v. Davey, in which the Supreme Court did uphold a Washington state prohibition on using state scholarships for religious purposes at institutions of higher education, and which many people felt was an affirmation of Blaine Amendments (the good parts, not the creepy anti-Catholic parts).   Trying to reconcile Locke and Trinity Lutheran is difficult.  You can’t just argue that it was a different, more liberal Court that produced Locke in 2004, because the opinion was written by Chief Justice William Rehnquist – hardly a bastion of liberal jurisprudence.
So it comes down to a difference between “use” and “status.”  You see, in Locke, Washington State actually allowed scholarships to go to religious schools; they just did not allow recipients to use them to pursue devotional theology degrees (i.e. use).  In Trinity Lutheran, the majority was able to distinguish Locke because the Missouri policy focused on the status of the recipient (i.e. that they were a church), and not on what the recipient planned to use the funds for (and obviously the proposed use of shredded rubber tires to resurface playgrounds was a very non-religious use).  A plurality of the Trinity Lutheran Court declined to address whether “use versus status” even matters, since they found that the status discrimination in that case clearly violated the Free Exercise Clause.
Espinoza falls somewhere between Locke and Trinity Lutheran:  the plaintiffs’ proposed use of the scholarships was certainly more religious than the use of the rubber tires in Trinity Lutheran, but less religious than training to be a minister in Locke.  Indeed, Justice Roberts distinguished Locke in part on the grounds that there is a special historical interest going all the way back to the founding against using state funds to train the clergy.  However, Justice Roberts really felt that Espinoza, like Trinity Lutheran, was a status case:  that “the no-aid provision bars all aid to a religious school ‘simply because  of what it is,’ putting the school to a choice between being religious or receiving government benefits.”
Justice Gorsuch wrote separately to express his opinion that the “status versus use” distinction was not valid: “Most importantly, though, it is not as if the First Amendment cares.”  Moreover, he considers such a distinction to be somewhat dangerous:  “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….”  But Justice Gorsuch is only one vote, and the “status versus use” distinction will almost certainly continue to be used to distinguish inconvenient cases.
So Where Do We Go Now? 
Because the plaintiffs in Espinoza did not challenge the facially validity of the Montana no-aid provision (just how it was applied), technically the Court did not declare all such amendments automatically invalid. The Court just pretty much said you can’t use them for much of anything. So such cases will probably continue to be brought, with parties arguing that their case is more like Locke, or more like Espinoza/Trinity Lutheran.
With regards to vouchers in general, in states with conservative legislatures, Espinoza may embolden them to pass new voucher programs in a secret (or sometimes not-so-secret) effort to shift public money to religious schools.  In states that are more concerned about funding religious schools, Espinoza may have the opposite effect and discourage such legislatures from passing any voucher (or “choice”) programs, so as not to be forced to also send money to religious schools to avoid “discrimination.”
One Last Word: 
As a codicil, I will put my public education advocate hat back on to argue that if Espinoza proves anything, it is that vouchers don’t really work – at least insofar as enabling lower socio-economic students to attend better private schools. Although Justice Roberts’ discussion of the facts of the case stresses that the plaintiff families were concerned that they would not be able to afford to send their children to Stillwater Christian School without the scholarships, it should be noted that the scholarships at issue were $500 a year.
Now, I don’t want to denigrate the impact that $500 could have for a family, especially one that is bound and determined to send their children to a private school. It would help.  But one of the stronger arguments against vouchers as means of promoting “racial-justice” for low-income and minority parents is that because most vouchers would not completely cover private school tuition, especially at the better private schools, the poorest and neediest students would not be able to pay the difference, and thus could not take advantage of the voucher system.  Vouchers would therefore be used mainly by middle-class students who already intended to attend private school, simply to defray costs that they were capable of paying.  While $500 a year might help some parents who are right on the bubble of being able to afford private schools, it is unlikely to have a major impact on allowing the poorest and neediest students to escape their public schools.