On January 22, the United States Supreme Court heard arguments in Espinoza v. Montana Department of Revenue, a case that may dramatically impact the ability of states to provide public funding to private, religiously-affiliated schools. In 2015, Montana enacted a tax-credit program to help fund scholarships for students attending private schools. The state’s revenue department soon declared that a provision in Montana’s constitution banning aid to religious institutions meant the scholarships could not be used at religious schools. After several parents sued, the Montana Supreme Court agreed that the scholarship initiative violated the state constitution and struck down the entire program.

In oral arguments, the justices focused on several questions, including whether the parents actually had standing to sue and if the prohibitions were rooted on 19th century anti-Catholic bigotry. The Court also heard arguments about whether its 2017 decision in Trinity Lutheran v. Comer permitting a church in Missouri to receive state grants to resurface its playground should apply. A footnote in the majority opinion in that case said the ruling was limited to its particulars and did “not address religious uses of funding or other forms of discrimination.”

Prior to oral arguments, Harvard Law Today sat down with Professor Mark Tushnet to preview the case. Tushnet argues that the Court will need to decide between two bedrock constitutional principles: separation of church and state, and prohibitions against religious discrimination. Whichever way the Court rules, he says, religiously-affiliated schools and voucher programs might lose.

Harvard Law Today: What does the United States Constitution say about religion?

Mark Tushnet: The First Amendment says that “Congress shall make no law respecting an establishment of religion.” That provision, by its terms, is applicable only to Congress. The 14th Amendment has a provision providing that “no state shall deprive any person of due process,” and so on. That has been interpreted to incorporate—that is, to make applicable to the states—the non-establishment principle of the First Amendment. The Supreme Court’s 1948 decision in Everson v. Board of Education is the clearest early articulation of this incorporation of the non-establishment principle. Consequently, the law has been settled for more than 70 years that states may not make laws—again, to use the term from the First Amendment—respecting an establishment of religion.

HLT: And how have the courts in recent years—say, since Everson—interpreted the Establishment Clause?

Tushnet: In the immediate aftermath of Everson and perhaps for 15 or 20 years thereafter, the Court took a fairly strong position against what we might call interactions between state governments and religious institutions. For example, they found lots of previous examples of efforts to provide financial support to church-affiliated schools unconstitutional.

Since perhaps the 1980s or ’90s, the Court has become increasingly receptive to those kinds of, or similar, financial interactions between church and state. Most notably, the Court upheld in a case called Zelman v. Simmons-Harris a voucher program in which the government provided money to parents who could then make a decision to send their children to a religiously-affiliated school. In doing so, the Court said that having the parent make the choice was a significant factor in upholding the program. So, the Court has upheld what we might call indirect monetary support for religiously-affiliated schools.

HLT: How about direct financial aid to religiously-affiliated schools?

Tushnet: In the Trinity Lutheran [Church of Columbia, Inc. v. Comer] case of a couple of years ago, the Court upheld a program that provided direct financial aid to a religious institution for repaving a playground with recycled materials. In their decision, the justices included a footnote that says, “We are approving this program, but in doing so, we are not approving all programs of direct financial aid to religious institutions.”

Now, in the Trinity Lutheran case, the state has this program. It made the money available to schools with playgrounds, but expressly excluded religiously-affiliated schools. And it did so on the grounds that providing such aid would violate the non-establishment principle. And the Court basically said, “No, it wouldn’t violate non-establishment, and you are discriminating against religiously-affiliated schools. And there’s a bedrock principle of non-discrimination against religious institutions.”

The problem in the Espinoza case is that there has been another bedrock principle, which is that direct monetary aid to religious institutions is a pristine violation of the non-establishment principle. One of the core documents in the background of the non-establishment clause is a pamphlet written by [founding father and 4th U.S. president] James Madison called “The Memorial and Remonstrance,” in which he wrote that the non-establishment idea means that no person can be required to pay even two pence in support of a church. So even what seems like a trivial financial contribution to a church was, for Madison, an impermissible establishment of religion. And that principle—no direct financial aid—has been adhered to ever since.

Now we have the Trinity Lutheran case saying it’s discriminatory to exclude religious institutions from a generally available program. And Zelman saying it’s not a violation of the Establishment Clause to include them if it’s indirect. The question in Espinoza v. Montana is whether it is a violation of the Establishment Clause to exclude religious institutions from direct financial support. And that was the question that was reserved in that footnote in Trinity Lutheran.

HLT: Has the Court articulated any distinction between public funding that goes to a religious school for nonreligious purposes, such as resurfacing a playground, and money that explicitly funds religious education, such as a student pursuing studies in devotional theology?

Tushnet: In Locke v. Davey, the State of Washington said that, “We will pay the tuition for college students in certain circumstances, but we won’t pay tuition of people whose major program is preparing them for the ministry.” In an opinion by Chief Justice Rehnquist, the Court found that the Establishment Clause or the principles of religious liberty, or the principles of religious freedom, which encompass both free exercise and non-establishment, had to have what he called “play in the joints.”

Montana is relying on this idea of play-in-the-joints. It has this program, it’s generally available, but it excludes church-related institutions. And they say this is subject to the play-in-the-joints principle. The plaintiff counters that the Trinity Lutheran case says direct payments are not a violation of the Establishment Clause, and so you could give them to us.

To make things more complicated, Montana has a state constitutional prohibition on providing direct financial aid to religious institutions. Their argument is that, “We’re not doing it because we’re afraid of a federal constitutional violation. We’re doing it because our people through our constitution have said, ‘We don’t want to support church–related institutions, at least directly, with direct financial aid.’”

Then the question becomes: Is that prohibition embedded in the state constitution itself unconstitutional? Or, another way of putting it is, was Chief Justice Rehnquist wrong in saying there had to be play-in-the-joints?  Because the plaintiff says, “In Trinity Lutheran, you said it was discriminatory to exclude church-related schools from this program. Whatever your reason—whether it’s a policy choice, fear of an Establishment Clause violation, or a state constitutional provision—it’s discriminatory to exclude us from this otherwise available program.”

So that’s the core issue—whether the anti-discrimination principle from Trinity Lutheran overrides either the policy choice or state constitutional restriction to exclude religiously-affiliated schools from the program.

One final complexity: In the late 19th century, a number of states adopted provisions similar to Montana’s, banning direct financial support to churches. These were known as “Little Blaine Amendments.” [James G.] Blaine was a senator from Maine who sponsored an amendment on the national level, which was never adopted. But many states adopted these Little Blaine Amendments that said the same thing.

These so-called Little Blaine Amendments adopted in this period were rather clearly motivated by anti-Catholic bias. And so, contemporary supporters of institutions like the church in the Montana case argue that this kind of prohibition is a legacy of these anti-Catholic Little Blaine Amendments and should be invalidated, not only because they’re discriminatory, but particularly because their discriminatory background is anti-Catholic.

HLT: Can you speculate on why the Court decided to take up this case?

Tushnet: My speculation is that the footnote in Trinity Lutheran was—as sometimes is put—a highly negotiated insertion in order to be able to dispose of the case in a relatively uncontentious way. But the negotiation was between people who, on the one hand, thought that the nondiscrimination principle actually should apply to cases like Montana’s, and on the other, by people who thought that the “no direct financial aid” principle should prevail over whatever nondiscrimination concern you have.

So, the justices have been thinking about this. They thought about it in Trinity Lutheran and they decided to finesse it. But the footnote is an invitation to relitigate the question, or to litigate it directly.

Justice Kavanaugh was not on the Court when Trinity Lutheran was decided. The assumption is that he would support finding that the provision in the Montana constitution that bars providing funds to religious organizations violates the U.S. Constitution. Consequently, the justices could resolve the issue flagged in the footnote in a way favorable to the people who thought in Trinity Lutheran that direct financial aid would be okay.

HLT: What do you think the possible impact of this case might be?

Tushnet: The political viability of voucher programs has always been sort of tenuous; they’re hard to enact. One of the things that has been built in to the political compromises that allow them to be enacted—to get sort of over the threshold— is the exclusion of religiously-affiliated schools.

It’s mistaken to think that voucher programs in the abstract are popular. They’re not terribly popular. They can get enacted. But supporters have to engage in compromises. And one of the compromises routinely has been exclusion of religiously-affiliated schools.

In the past, the political flashpoint was Catholic schools. The flashpoint today is Islamic schools. It used to be about Catholic schools and now it’s about Islamic-affiliated schools. Which is part of the political environment.

And so, if the Court says, “If you create a voucher program, you must include religiously-affiliated schools,” that might lead to the defeat of voucher statutes in places where voters don’t want to fund religiously-affiliated schools. The political compromise that allows them to get majority support won’t be available.

So the image of this case leading to the disappearance of the voucher programs, that image is not mistaken. It’s not guaranteed, but it’s not a mistake to think that if the Court rules in favor of the churches or the schools, in the end, church-related schools will not benefit from the decision.

HLT: So, if the Court upholds Montana’s prohibition against funding religious schools, vouchers for those schools will be legally barred. And if the justices rule against Montana and permit public funding of religious schools, there is a chance that popular opposition will grow and, in many jurisdictions, vouchers will be barred for political reasons. Either way, religious schools may lose.

Tushnet: That’s right.

HLT: What are the possible ways that the Court could rule?

Tushnet: There’s always the possibility that the Court would be able to identify some narrow peculiarity of the Montana program that they could use as a basis for invalidating it without having any broad implications. At some level, that’s ultimately what the Court did in the Masterpiece Cakeshop case. That might be possible in the Montana case, but what I’ve read about it doesn’t suggest that anybody has identified this kind of narrow flaw. Or the Court might say that the tax credit system isn’t really direct aid, but is channeled through parents’ choices, and so is just like the voucher system in Zelman.

Otherwise, I think the options are either to uphold the Montana program excluding the funding of religious schools, invoking Justice Rehnquist’s play-in-the-joints idea. Or they can rule there’s a firm principle of nondiscrimination which this provision violates.